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PER CURIAM. Plaintiff appeals as of right the circuit court order dismissing her complaint without prejudice on the basis of a forum-selection clause in the parties’ contract. We affirm. This appeal is being decided without oral argument. MCR 7.214(E). I. FACTS Plaintiff was employed as a branch manager by defendant, a Washington corporation, pursuant to an employment contract. The contract contained both a choice-of-law provision and a forum-selection provision: This agreement shall be subject to and governed by the laws of Washington, irrespective of the fact that a party is or may become a resident of a different state. Both parties hereby agree that the Circuit Court of Pierce County, State of Washington, shall have the exclusive jurisdiction to hear and determine any and all disputes, controversies, or claims arising out of, or relating to this Agreement, or concerning the respective rights of the parties hereunder and, for such purposes, do hereby submit themselves to the sole personal jurisdiction of that Court. Plaintiff brought this action in the Wayne Circuit Court, alleging that defendant failed to pay commissions that she was owed under the contract. Defendant argued that, in light of the forum-selection clause, plaintiff should have brought this action in the state of Washington. Plaintiff asserted that the forum-selection clause was unenforceable pursuant to MCL 600.745(3), which provides in pertinent part: If the parties agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court shall dismiss or stay the action, as appropriate, unless any of the following occur: (c) The other state would be a substantially less convenient place for the trial of the action than this state. (d) The agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means. (e) It would for some other reason be unfair or unreasonable to enforce the agreement. Defendant suggested that the forum-selection clause was enforceable under MCL 600.745(3), and that, in the alternative, Washington law should apply to determine the enforceability of the contract’s forum-selection clause. The trial court observed that “[p]eople are free to bargain for the [forum] where any dispute will be litigated and [plaintiff] did so . ...” Having found that plaintiff freely consented to the forum-selection provi sion, and that the provision did not fall within any of the MCL 600.745(3) exceptions, the trial court enforced the forum-selection clause and dismissed the action without prejudice. II. FORUM-SELECTION CLAUSE Plaintiff argues that the trial court erred in dismissing this action pursuant to the forum-selection clause in the parties’ contract. We disagree. A. STANDARD OF REVIEW Michigan courts have not precisely identified the proper standard for reviewing a trial court’s dismissal based on a forum-selection clause. Both parties contend on appeal that a trial court’s dismissal of an action pursuant to a contractual forum-selection clause should be reviewed de novo. While not identical, dismissal based on a forum-selection clause is similar to a grant of summary disposition for lack of personal jurisdiction. Although a valid forum-selection clause does not divest the Michigan courts of personal jurisdiction over the parties, it evinces the parties’ intent to forgo personal jurisdiction in Michigan and consent to exclusive jurisdiction in another forum. See James v Midland Co Agricultural & Horticultural Society, 107 Mich App 1, 5; 308 NW2d 688 (1981). Indeed, forum-selection clauses are inherently bound up with notions of personal jurisdiction. See id. Of note, the Michigan forum-selection statute, MCL 600.745(3), is itself contained among the jurisdictional provisions of the Revised Judicature Act. This Court reviews de novo a trial court’s grant of summary disposition, as well as a trial court’s jurisdictional rulings. Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 152; 677 NW2d 874 (2003). Moreover, a dismissal based on a forum-selection clause necessarily requires interpretation and application of contractual language. The legal effect of a contractual clause is a question of law that we review de novo. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 369; 666 NW2d 251 (2003). In light of the above authority and the contractual nature of forum-selection provisions, we are convinced that a trial court’s dismissal of an action pursuant to a contractual forum-selection clause is properly reviewed on appeal under a de novo standard. B. ANALYSIS We begin with Michigan’s fundamental rules of contract interpretation, set forth by our Supreme Court in Quality Products & Concepts, supra: In interpreting a contract, our obligation is to determine the intent of the contracting parties. If the language of the contract is unambiguous, we construe and enforce the contract as written. Thus, an unambiguous contractual provision is reflective of the parties’ intent as a matter of law. Once discerned, the intent of the parties will be enforced unless it is contrary to public policy. [Id. at 375 (internal citations omitted).] It is undisputed that Michigan’s public policy favors the enforcement of contractual forum-selection clauses and choice-of-law provisions. See Offerdahl v Silverstein, 224 Mich App 417, 419; 569 NW2d 834 (1997) (recognizing the enforceability of forum-selection clauses and choice-of-law provisions). Thus, assuming that certain exceptions do not apply, Michigan courts will enforce an express forum-selection clause as written. MCL 600.745(3). Similarly, Michigan courts will enforce contractual choice-of-law provisions if certain conditions are met. Chrysler Corp v Skyline Industrial Services, Inc, 448 Mich 113, 126-127; 528 NW2d 698 (1995); Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 60-61; 554 NW2d 17 (1996). The analysis grows more complicated, however, when a single agreement contains both a forum-selection clause and a choice-of-law provision. When a party to such an agreement sues in a state that is not designated by either the forum-selection clause or the choice-of-law provision, it becomes necessary to determine which state’s law will govern the enforceability of the forum-selection clause itself. In other words, the trial court where the action is filed must decide whether to determine the enforceability of the forum-selection clause by applying its own law, or by applying the law designated in the choice-of-law provision. In the case at bar, the parties designated the state of Washington in the forum-selection clause and Washington state law in the choice-of-law provision. Notwithstanding these provisions, plaintiff filed suit in Michi gan. Therefore, in order to decide whether to exercise or decline jurisdiction, it was essential for the trial court to determine whether the forum-selection clause was valid and enforceable. Accordingly, under ordinary circumstances, the trial court would have been required to first determine whether Michigan or Washington law governed the forum-selection clause’s enforceability. However, because we determine that the forum-selection clause in the parties’ contract would have been equally enforceable under either Michigan law or Washington law, we need not decide which state’s law would otherwise have governed the clause’s applicability. As noted earlier, Michigan courts generally enforce contractual forum-selection clauses. MCL 600.745(3); Offerdahl, supra at 419. The exceptions to this rule are stated in MCL 600.745(3)(a)-(e), and unless one of the statutory exceptions applies, Michigan courts will enforce a forum-selection clause as written. The statutory exceptions that are relevant in this case provide that a forum-selection clause should be enforced unless “[t]he other state would be a substantially less convenient place for the trial[,]” “[t]he agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means[,]” or “[i]t would for some other reason be unfair or unreasonable to enforce the agreement.” MCL 600.745(3)(c)-(e). A party seeking to avoid a contractual forum-selection clause bears a heavy burden of showing that the clause should not be enforced. The Bremen v Zapata Off-Shore Co, 407 US 1, 17-18; 92 S Ct 1907; 32 L Ed 2d 513 (1972). Accordingly, the party seeking to avoid the forum-selection clause bears the burden of proving that one of the statutory exceptions of MCL 600.745(3) applies. Our research has revealed that the standards for enforcing contractual forum-selection provisions under Washington law are substantially similar. In general, Washington state courts will enforce a forum-selection clause unless it is unreasonable, unjust, or unfair. Voicelink Data Services, Inc v Datapulse, Inc, 86 Wash App 613, 617-618; 937 P2d 1158 (1997). “[T]he party arguing that the forum selection clause is unfair or unreasonable bears a heavy burden of showing that trial in the chosen forum would be so seriously inconvenient as to deprive the party of a meaningful day in court.” Bank of America, NA v Miller, 108 Wash App 745, 748; 33 P3d 91 (2001). “Absent evidence of fraud, undue influence, or unfair bargaining power, courts are reluctant to invalidate forum selection clauses as they increase contractual predictability.” Id., citing Voicelink Data Services, supra at 617; see also Wilcox v Lexington Eye Institute, 130 Wash App 234, 239; 122 P3d 729 (2005). Turning to the case at bar, defendant presented affidavits stating that the witnesses and voluminous employment records needed to defend this action are located in Washington. Moreover, defendant’s affidavits showed that only a minimal amount of relevant evidence is located in Michigan. Plaintiff asserted that most of her witnesses reside in Michigan, that the pertinent transactions took place in Michigan, and that certain factual information concerning the case is located in Michigan. However, plaintiff failed to present admissible documentary evidence supporting any of these assertions. Plaintiff also claimed that the contract was obtained through abuse of economic power, inasmuch as defendant is a large corporation and she is a mere individual who was unable to negotiate the terms of the contract at the time the agreement was executed. Again, however, plaintiff failed to present evidence to support her assertions that defendant wielded unfair bargaining power or that the clause was not subject to negotiation. Under the law of both Michigan and Washington, plaintiffs unsupported allegations were inadequate to meet her burden of showing that enforcement of the forum-selection clause would have been unreasonable, unjust, substantially inconvenient, or unfair. The Bremen, supra at 17-18; Bank of America, supra at 748; see also 1 Restatement Conflict of Laws, 2d (1988 Revisions), § 80, comment c, p 85 (“[t]he burden of persuading the court that stay or dismissal of the action would be unfair or unreasonable is upon the party who brought the action”). Moreover, the claimed inconvenience of litigating in Washington should have been apparent to plaintiff when she agreed to the forum-selection clause. Like the Washington Court of Appeals and the United States Supreme Court, we conclude that inconvenience, insofar as it is within the contemplation of the parties at the time of contracting, should not render a forum-selection clause unenforceable. The Bremen, supra at 16-17; Bank of America, supra at 748-749. Where the inconvenience of litigating in another forum is apparent at the time of contracting, that inconvenience is part of the bargain negotiated by the parties. Allowing a party who is disadvantaged by a contractual choice of forum to escape the unfavorable forum-selection provision on the basis of concerns that were within the parties’ original contemplations would unduly interfere with the parties’ freedom to contract and should generally be avoided. III. ATTORNEY FEES Defendant also asserts that it is entitled to attorney fees incurred in defending this action, including the appeal. Defendant asserted its claim for attorney fees below, but the trial court denied the request. Although filing a cross-appeal is not necessary to argue an alternative basis for affirming the trial court’s decision, the failure to do so generally precludes an appellee from raising an issue not appealed by the appellant. Kosmyna v Botsford Community Hosp, 238 Mich App 694, 696; 607 NW2d 134 (1999). Defendant’s failure to file a cross-appeal from the trial court’s denial of its request for attorney fees precludes it from now attempting to obtain a decision more favorable than that rendered below. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). IV CONCLUSION Similar to a dismissal for lack of jurisdiction, see MCR 2.504(B)(3), a dismissal based on a contractual forum-selection clause is not an adjudication on the merits. Therefore, such a dismissal is properly characterized as a dismissal without prejudice. See ABB Paint Finishing, Inc v Nat’l Union Fire Ins Co of Pittsburgh, 223 Mich App 559, 563; 567 NW2d 456 (1997). Affirmed. Contrary to plaintiffs assertion, the trial court did not dismiss this case for improper venue. Such a decision necessarily requires the court to first determine under its own law whether the contractual choice-of-law provision is itself enforceable. See Beilfuss v Huffy Corp, 274 Wis 2d 500, 506-507; 685 NW2d 373 (Wis App, 2004) (describing the decision whether to construe a contract’s forum-selection clause and choice-of-law provision together or independently as “the classic conundrum”). We have previously determined that Michigan courts have the initial jurisdiction to “determine the threshold issue whether a party is bound by a contract, and, accordingly, any forum selection and choice-of-law provision in the contract.” Offerdahl, supra at 420; see also Blackburne & Brown Mortgage Co v Ziomek, 264 Mich App 615, 621-622; 692 NW2d 388 (2004). However, this Court has never specifically addressed whether such an initial determination should be made pursuant to Michigan law or, alternatively, pursuant to the law designated in the contract’s choice-of-law provision. Michigan courts have never squarely addressed whether the enforceability of a contractual forum-selection clause should be governed by the law of the state where the action was filed or, in the alternative, the law selected by the parties in the choice-of-law provision. However, courts in several other jurisdictions have addressed this matter. Many jurisdictions follow the rule that, provided the choice-of-law provision is enforceable under the law of the state where the action was filed, the law selected in the choice-of-law provision will govern the applicability or enforceability of the forum-selection clause. The rationale for this view is that the parties contracted for the law of a specific jurisdiction, and therefore the law of the state where the action was filed should not be applied to displace the contractually chosen law. See Jacobsen Construction Co v Teton Builders, 106 P3d 719, 723 (Utah, 2005); Szymczyk v Signs Now Corp, 168 NC App 182, 187; 606 SE2d 728 (2005); Jacobson v Mailboxes Etc USA, Inc, 419 Mass 572, 575; 646 NE2d 741 (1995); Cerami-Kote, Inc v Energywave Corp, 116 Idaho 56, 58; 773 P2d 1143 (1989); see also Parsons Dispatch, Inc v John J Jerue Truck Broker, Inc, 89 Ark App 25; 199 SW3d 686 (2004) (assuming that Florida law, as designated by the choice-of-law provision, governed the enforceability of the forum-selection clause); Eisaman v Cinema Grill Systems, Inc, 87 F Supp 2d 446, 448 (D Md, 1999) (federal district court sitting in diversity applying Georgia law, as designated by the choice-of-law provision, to determine the enforceability of a forum-selection clause). In contrast, certain jurisdictions follow the rule that a contract’s forum-selection clause is to be read independently of the choice-of-law provision, and that the validity of the forum-selection clause will always be determined according to the law of the jurisdiction where the action was filed. This rule is based on the notion that because choice-of-law provisions only require application of the chosen state’s substantive law, the state where the action was filed remains free to apply its own law on matters of procedure, including the question whether the forum-selection clause is valid in the first place. See Golden Palm Hospitality, Inc v Stearns Bank Nat’l Ass’n, 874 So 2d 1231, 1234-1235 (Fla App, 2004) (adhering to the view that Florida law governs the enforceability of forum-selection clauses, even when the contract contains a choice-of-law provision favoring the law of another jurisdiction); see also Fendi v Condotti Shops, Inc, 754 So 2d 755, 757-758 (Fla App, 2000); Yamada Corp v Yasuda Fire & Marine Ins Co, Ltd, 305 Ill App 3d 362, 367-368; 712 NE2d 926 (1999) (applying Illinois law instead of the contractually chosen Japanese law to determine validity of the forum-selection clause). See Morgan Bank (Delaware) v Wilson, 164 Ariz 535, 538; 794 P2d 959 (Ariz App, 1990) (“we believe that under either Arizona or Kentucky law, the result is the same in the present case, and therefore do not decide which law applies”).	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Fer CURIAM. Respondent appeals as of right the November 1,2004, order of the trial court, which denied his motion to quash a subpoena and mandated his appearance for a deposition. We affirm. Respondent received a subpoena to appear for a deposition in Michigan regarding matters stemming from a presuit discovery proceeding pending in Tarrant County, Texas. Respondent moved to have the subpoena quashed. When his motion was denied, he immediately moved for a stay of his deposition pending appeal. Respondent also filed an appeal from the order denying his motion to quash. When his motion for a stay was denied by the trial court, respondent moved both this Court and the Michigan Supreme Court to stay the deposition until his appeal could be heard. These motions were denied. Ewin v Burnham, 471 Mich 943 (2004); Ewin v Burnham, unpublished order of the Court of Appeals, issued December 14, 2004 (Docket No. 259180). Respondent ultimately submitted to the deposition. Consequently, he is no longer asking this Court to quash the subpoena, but he requests that this Court seal the deposition, pursuant to a protective order, so that it cannot be used in any legal proceedings. MCR 7.216(A)(7) permits this Court to “at any time, in addition to its general powers, in its discretion, and on the terms it deems just,” “enter any judgment or order or grant further or different relief as the case may require.” Thus, we consider defendant’s issue regarding the propriety of the subpoena and order to appear for deposition, and the relief now requested. On appeal, respondent contends the trial court should have granted his motion to quash the subpoena because it violated his rights. Specifically, he argues that the trial court erred as a matter of law in interpreting Michigan law to require that he submit to the deposition. The interpretation and application of statutes is a question of law that we review de novo. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997). The interpretation and application of court rules is also a question of law that is reviewed de novo, and the rules of statutory interpretation are applied. Hinkle v Wayne Co Clerk, 467 Mich 337, 340; 654 NW2d 315 (2002). Where statutory language is clear and unambiguous, judicial construction is precluded. Auto-Owners Ins Co v State Farm Mut Auto Ins Co, 187 Mich App 617, 618; 468 NW2d 317 (1991). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). This Court must “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). Respondent maintains that a Michigan court cannot issue a subpoena based on Tex R Civ P 202.1. Rule 202.1 dictates that, in order to effectuate a subpoena before a suit is filed, a party may petition the court for an order authorizing the taking of a deposition: (a) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit. In Michigan, MCR 2.305(E) permits depositions to be taken of Michigan residents when actions are pending in another state. It provides: Action Pending in Another State, Territory, or Country. An officer or a person authorized by the laws of another state, territory, or country to take a deposition in Michigan, with or without a commission, in an action pending in a court of that state, territory, or country may petition a court of record in the county in which the deponent resides, is employed, transacts business in person, or is found, for a subpoena to compel the deponent to give testimony. The court may hear and act on the petition with or without notice, as the court directs. Petitioner argues that there was no “action” pending in Texas and, thus, the Michigan court could not grant petitioner’s petition for a subpoena even though the Texas court authorized petitioner to seek respondent’s deposition. We disagree. MCR 2.305(E) must be read in accordance with the Uniform Interstate and International Procedure Act, which Michigan has adopted and codified at MCL 600.1852. This statute “establishes a clear procedure for deposing residents of Michigan in actions pending in other states.” Commercial Union Ins Co v Cannelton Industries, Inc, 828 F Supp 504, 508 (WD Mich, 1993). MCL 600.1852(2) states: Any court of record of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. The order shall be issued upon petition to a court of record in the county in which the deponent resides or is employed or transacts his business in person or is found for a subpoena to compel the giving of testimony by him. The court may hear and act upon the petition with or without notice as the court directs. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things for use in a proceeding before a tribunal outside this state. The statute and the court rule are not in conflict. The court rule provides a procedure whereby a person authorized by another state to take a deposition in Michigan in an “action” pending in that state may petition a court of this state for a subpoena to compel the deponent to give testimony. MCR 2.305(E). The word “may” is permissive. Gulley-Reaves v Baciewicz, 260 Mich App 478, 485; 679 NW2d 98 (2004). Thus, the court rule provides a non-mandatory procedure for obtaining Michigan depositions for “actions” pending in other states. The language of the court rule does not, in any way, limit the ability of a foreign party to obtain a subpoena for a deposition of a Michigan resident for purposes of a lawful proceeding, short of a filed action, in a foreign state. The statute, MCL 600.1852, provides authority to courts in this state to order persons in this state to give testimony for use in “any proceedings” before tribunals outside this state. Because the statute and the court rule do not conflict, this Court does not have to determine whether the statute is an attempt to usurp our Supreme Court’s authority to control prac tice and procedure in our courts. Mud v State Farm Mut Auto Ins Co, 267 Mich App 431, 442; 705 NW2d 151 (2005). MCL 600.1852 explicitly uses the term “proceeding” instead of “action.” Thus, by its plain language, it authorizes courts in this state to order a person domiciled in Michigan to submit to a deposition for use in “any proceeding” before a court in another state. In Michigan, a “proceeding,” in a general sense, is “ ‘the form and manner of conducting juridical business before a court or judicial officer.’ ” People v Bobek, 217 Mich App 524, 530; 553 NW2d 18 (1996), quoting Black’s Law Dictionary (6th ed). A “proceeding” “apparently encompasses all matters brought before a court in a specific judicial action.” Id. In Texas, a Rule 202.1 procedure is a proceeding as defined by Michigan law. The procedure, authorized by Texas law, provides access to Texas courts to perform specific judicial actions before suit. The presuit procedure is a sanctioned court proceeding, a step in the judicial process. Because MCL 600.1852 authorized the trial court herein to order respondent to testify for use in the Texas proceeding, we find no error that would require defendant to obtain relief by way of sealing the deposition pursuant to a protective order. We also find no alternative ground to rule in favor of respondent. We reject respondent’s argument that because he had no forum in which to assert objections to the procedure, he was deprived of his due process rights. First, respondent had ample opportunity to make arguments before the courts of this state. Second, we find that respondent has abandoned his claim that any relevancy objections could not be ruled on by our courts. An appellant may not argue error and leave it to this Court to discover and rationalize the basis for that error. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998). Further, we find it unnecessary to address respondent’s claim that the Full Faith and Credit Clause, US Const, art I\J § 1, does not apply to this case. The trial court did not rely on that clause in ordering respondent’s deposition and it was not an issue in the trial court. Affirmed.	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SAWYER, P.J. Defendant was convicted, following a jury trial, of operating a motor vehicle while intoxicated (OWI) or while visibly impaired (OWVD and thereby causing death. He was sentenced to serve 3 to 15 years in prison. He now appeals and we reverse and remand. At 2:00 a.m. on November 23, 2003, defendant was driving his sport utility vehicle (SUV) east on 17 Mile Road in northern Kent County. He attempted to turn north onto Edgerton Avenue and drove into the path of an oncoming car driven by Jason Reichelt. Reichelt’s car hit defendant’s SUV and spun 180 degrees, coming to rest on the centerline of 17 Mile Road. The SUV came to rest on the side of the road. It was later determined that defendant had a blood alcohol concentration of 0.16, which is twice the legal limit. Reichelt and his passenger, Jonathan Keiser, were not seriously injured, but Reichelt’s car was severely damaged and the headlights stopped working. Both men left the car and walked to the SUV to determine if anyone was injured. After speaking briefly with defendant, the two men walked back to Reichelt’s car. Reichelt indicated that he was aware that oncoming cars could hit his darkened car and that he wanted to determine if he could turn on the flashers. As Reichelt and Keiser stood by the car, an oncoming car driven by Tonya Welch hit Keiser, killing him. At the center of this appeal is the issue of causation. Defendant argues that not only did the trial court improperly instruct the jury on causation, there was also insufficient evidence of causation to establish defendant’s guilt. Because the two issues are intertwined with the question of what must be proven to establish causation in such a case, we shall analyze both issues together beginning with a determination of what the prosecutor must show to establish causation. As the Supreme Court discussed in People v Schaefer, causation consists of two components: In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists. The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in [People v] Tims[, 449 Mich 83, 96; 534 NW2d 675 (1995)], proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.”[ ] We initially note that there is no dispute at this point that defendant was intoxicated and that his driving was the cause of the initial accident. Furthermore, there is no argument that defendant’s driving was the factual or “but-for” cause of the second accident. This analysis is relatively straightforward: but for defendant causing the initial accident, the subsequent accident would not have occurred. Of course, factual causation is relatively easy to establish. As the court in Welch v State observed, “[m]ankind might still be in Eden, but for Adam’s biting an apple.” But the question whether defendant is the proximate cause of the subsequent accident, and thus of the victim’s death, is not so easily resolved. Schaefer discussed this requirement in further detail: For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken. If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury. The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim. The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable — e.g., gross negligence or intentional misconduct — then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.[ ] With these basic principles in mind, we conclude that the trial court improperly instructed the jury on the issue of proximate cause. We review claims of instructional error de novo. The trial court is required to instruct jurors on “all elements of the crime charged and must not exclude consideration of material issues, defenses, and theories for which there is supporting evidence.” Instructions are to be read as a whole and not piecemeal to determine if error requiring reversal occurred. “It is error for the trial court to give an erroneous or misleading jury instruction on an essential element of the offense.” The trial court gave detailed and extensive instructions on factual causation, including reinforcement of the concept that defendant had to he “a” cause of the accident, but not necessarily “the” cause of the accident. But the trial court’s instructions on proximate cause and superseding intervening causes were virtually nonexistent. The trial court did implicitly touch on the issue of proximate cause when it instructed the jury that one of several causes “is a substantial factor in causing a death if, but for that cause’s contribution, the death would not have occurred, unless the death was an utterly unnatural result of whatever happened.” But the instructions also told the jury that another cause could be a superseding cause only if it was the sole cause: Now it also necessarily follows that somebody else’s conduct, for example, by Mr. Keiser, or by some third party, even if that other conduct was wrong or itself negligent, does not cut off criminal liability unless the other cause was the only cause. Obviously, if somebody else’s conduct was the only reason Mr. Keiser died, then it can’t possibly be something to which Mr. Rideout contributed. This is not a correct statement of the law. A superseding intervening cause does not need to be the only cause. Indeed, as the Court noted in Schaefer, while the defendant’s conduct in that cause was a factual cause of the accident, the victim’s conduct may also have been a cause and, more to the point, potentially a superseding cause. The effect of the trial court’s instructions was that the jury could convict defendant if they found him to be a factual cause of the accident and that the jury could find the existence of a superseding intervening cause only if that superseding intervening cause was the only cause of the second accident. The jury was not adequately instructed on the issues of proximate and intervening causes. This conclusion is enough to set aside defendant’s conviction, with directions to the trial court to properly instruct the jury on the causation issue. But we agree with defendant that the problem in this case goes even deeper, because there was insufficient evidence to establish proximate cause at all. We review a claim of insufficient evidence in a criminal trial de novo. We view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the essential elements of the crime were established. The troubling aspect of this case is that the second accident only occurred after Keiser had reached a position of safety (the side of the road) and then chose to reenter the roadway with Reichelt to check on the car. While foreseeability is the “linchpin” of the superseding causation analysis, and it is at least arguably foreseeable that a person involved in an accident would check on his or her vehicle even if it remains on the road, the analysis does not end there. As Professor Dressier discusses in Understanding Criminal Law (3d ed), there is no universal test for determining if an intervening cause is also a superseding cause: One early twentieth century scholar observed that all efforts to set down universal tests that explain the law of causation are “demonstrably erroneous.” [Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harv L R 223, 317 (1912).] There are no hard-and-fast rules for determining when an intervening cause supersedes the defendant’s conduct. However, there are various factors that assist the factfinder in the evaluative process. Indeed, Dressier points out that to say that foreseeability is the “linchpin” is “a slight overstatement,” though it is of great significance. Rather, Dressier discusses six factors to be considered in determining if an intervening cause is a superseding cause. Of the six factors discussed by Dressier, three are not relevant here. They are the (1) de minimis contribution to social harm factor, (2) the intended-consequences doctrine, and (3) the omissions factor. The foreseeability factor is relevant here, but its application is less than clear. As Dressier points out, a responsive intervening cause will establish proximate cause, while a coincidental intervening cause will not unless it was foreseeable. In discussing responsive intervening causes, Dressier points to the examples of a passenger in a capsized boat drowning while attempting to swim to shore and a wounded victim being negligently treated and dying. That is, the harm results from actions taken in response to the defendant’s conduct. A coincidental intervening cause would exist, for example, where the defendant’s conduct put the victim in the “wrong place at the wrong time,” such as an assault victim who is attacked by a “knife-wielding maniac” while waiting in the emergency room for treatment of the initial wounds. Whether the intervening cause is responsive or coincidental in the case at bar is arguable at best. On the one hand, the victim reentering the roadway to check on the vehicle was in direct response to the accident, though not in direct response to defendant’s having driven. On the other hand, Welch’s driving down the road when she did was entirely coincidental. In our view, Reiser’s decision to reenter the roadway renders the foreseeability factor of little value to the analysis. Rather, that decision directly involves the two remaining factors identified by Dressier that are present here. Those two factors, we believe, compel the conclusion that the intervening cause of the second accident was also a superseding cause. First, there is the apparent-safety doctrine, which Dressier describes as follows: One scholar has observed that when a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.” [Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv L R 633, 651 (1920).] For example, consider a somewhat simplified version of the facts in State v Preslar [48 NC 421 (1856)]: D threatened the life of V, his spouse. As a consequence, V was forced to leave the house on a freezing night in order to protect herself. V walked to within 200 yards of her father’s home, where she would have been welcome, but she chose to spend the night in the extreme cold, rather than bother her father by entering the house. V froze to death during the night. Clearly, D was an actual cause of V’s death: but for D’s threatening conduct, V would not have gone out into the cold. But, V’s decision to sleep outside was also a but-for cause of her own death. Is D the proximate cause of V’s death? The court in Preslar answered this question in the negative. The result may be explained in terms of the apparent-safety doctrine. D did not follow V from their home. When V reached the vicinity of her father’s house, she knew that she could enter and be free from immediate harm. Therefore, her decision to sleep outside constituted a superseding intervening cause.[ ] Similarly, in the case at bar, Reiser had reached a position of apparent safety: he had gotten out of the vehicle and was alongside the road, off the pavement. Had the second accident occurred before Reiser could extricate himself from the Reichelt vehicle and get to the side of the road, then the causal chain would have been intact. But he was able to get out of harm’s way and to a relatively safe position at the side of the road. He then made the choice to return to the roadway and place himself in a more dangerous position. Like the victim in Preslar, Reiser made a decision regarding his actions after the immediate danger was over. And that decision, like the decision in Preslar, ended the initial causal chain and started a new one, one for which defendant was not responsible. The point of a person making a decision brings us to the remaining factor discussed in Dressier, that of voluntary human intervention: A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate, and informed” [Hart & Honoré, Causation in the Law (2d ed 1985), p 326] — a voluntary, knowing, and intelligent— human agent than in the case of an intervention of a natural force or the actions of a person whose conduct is not fully free. The result in the Preslar case, described [above], can be explained in terms of this factor. V chose to sleep in the cold rather than to enter her father’s home. Her decision was free, deliberate, and with full knowledge of the fact that it was exceedingly cold outside. Under these circumstances, the responsibility for her death is shifted from D to V. This outcome is consistent with the retributive principle that accords special significance to the freewill actions of human agents.[ ] Similarly, in the case at bar, Reiser made the voluntary decision to return to the vehicle on the roadway, despite the danger that it posed. He could have chosen to remain on the side of the road. He chose instead to reenter the roadway, with the danger of standing in the roadway next to an unlit vehicle in the middle of the night being readily apparent. In sum, we conclude that the prosecution failed to present sufficient evidence to establish that defendant’s actions were a proximate cause of Reiser’s death. Therefore, we vacate defendant’s conviction for OWI/OWVT causing death. There remains the problem of the remedy. Under People v Randolph, while defendant cannot be retried on the charge for which we found insufficient evidence, we can direct the entry of a conviction for a necessarily included lesser offense on which the jury was instructed. In this case, the jury was instructed on two lesser offenses: operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle while visibly impaired (OWVI). A charge of OWI/OWVI causing death may be based on the commission of either of those offenses. MCL 257.625(4). Therefore, in convicting defendant of OWI/OWVI causing death, the jury of necessity had to find that defendant was either operating while intoxicated or operating while visibly impaired. But the nature of the verdict form renders it impossible to determine which of the two the jury found to be the case. Accordingly, we believe that the appropriate remedy is to direct the trial court to enter a conviction for the lesser offense, OWVI, and to sentence defendant for that offense. If the prosecutor believes that a conviction on the greater offense of OWI would better serve the interests of justice, he may, at any time before sentencing, inform the trial court that he wishes to try defendant on a charge of OWI instead of a conviction being entered under MCL 257.625(3). In light of our resolution of the above issues, we need not decide defendant’s remaining issue. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. MCL 257.625(4). See MCL 257.625(l)(b). 473 Mich 418; 703 NW2d 774 (2005). Schaefer, supra at 435-436, quoting 1 Torcia, Wharton’s Criminal Law (15th ed), § 26, pp. 147-148. Schaefer, supra at 434-435, clarified that, under MCL 257.625(4), it must be shown that defendant was driving while intoxicated and that his driving caused the death, but the prosecutor does not have to show that it was defendant’s intoxicated driving that caused the death. 45 Ala App 657, 659; 235 So 2d 906 (1970). Schaefer, supra at 436-437, quoting People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914). People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). Id. Id. People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985). Schaefer, supra at 445. The fact that the jurors struggled with the issue of causation is reflected by the fact that they sent questions on the issue to the trial court during deliberations. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005). Schaefer, supra at 437. Section 14.03[C][1], p 189. Dressler, supra, § 14.03[C][3][a], p 189. Id. at § 14.03[C], pp 189-194. Id. Id. at § 14.03[C][3][b-c], pp 190-191. Id. Id. at § 1403[C][5], pp 192-193. Id. at § 14.03[C][6], p 193. 466 Mich 532, 552-553; 648 NW2d 164 (2002). Before the offense date in this case, the Legislature had replaced the crime of operating under the influence of intoxicating liquor with operating while intoxicated. The older terminology was used in the jury verdict form, although the judge’s instructions employed the newer terminology. MCL 257.625(3). MCL 257.625(1).	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BORRELLO, J. This conflict panel was convened to resolve an inconsistency between the vacated portion of this Court’s prior opinion in Kik v Sbraccia, 268 Mich App 690; 708 NW2d 766 (2005) (Kik I), vacated in part 268 Mich App 801 (2005), and this Court’s earlier decision in Wesche v Mecosta Co Rd Comm, 267 Mich App 274; 705 NW2d 136 (2005). In accordance with MCR 7.215(J)(1), the panel in Kik I was required to follow the precedent of Wesche, which held that loss-of-consortium claims are not included in the motor-vehicle exception to governmental immunity found in MCL 691.1405 and that such claims were therefore barred by governmental immunity. Were it not for Wesche and MCR 7.215(J)(1), the panel in Kik I would have affirmed the decision of the lower court that damages for derivative claims were available in an action brought pursuant to the motor-vehicle exception, MCL 691.1405. The conflict at issue involves whether damages for derivative claims such as loss of consortium are available in actions brought pursuant to the motor-vehicle exception. MCL 691.1405. In Wesche, a panel of this Court held that because loss-of-consortium claims do not encompass bodily injury or property damage, they are not included in the motor-vehicle exception to governmental immunity. Wesche, supra at 278-279. Therefore, this Court affirmed the trial court’s ruling that the plaintiff wife’s loss-of-consortium claim was barred by governmental immunity. Id. at 279-280. In Kik I, this Court held that the panel’s decision in Wesche was inapplicable to wrongful death cases, Kik I, supra at 706-707, 712 n 42; therefore, Wesche did not apply to plaintiffs’ claim for loss of society and companionship for the death of their daughter. However, the panel in Kik I concluded that the claim for loss of consortium brought by plaintiff husband against defendants Kinross Charter Township and Kinross Charter Township EMS (but not Sbraccia, the driver of the ambulance, individually), relating to the injuries suffered by plaintiff wife in the accident, did fall squarely within the scope of Wesche. Id. at 707. In Kik I, the panel opined “that Wesche was incorrectly decided” and stated that “were we not obligated by MCR 7.215(J) to follow Wesche, we would reach a different conclusion ...Id. at 711. However, because it was constrained to do so by MCR 7.215(J), this Court followed Wesche and reversed the trial court’s denial of summary disposition regarding plaintiff husband’s claim for loss of consortium arising out of his wife’s injuries and remanded the matter to the trial court for entry of summary disposition in favor of the township and the township’s EMS on that claim. Id. at 711-712. Following due consideration of the analyses of the competing viewpoints regarding this conflict issue in Wesche and Kik I, we resolve the conflict in accordance with the panel’s opinion in Kik I. We are persuaded by the panel’s reasoning in part III of the Kik I opinion and adopt its reasoning and analysis as our own. We therefore expressly adopt and reinstate part III of the panel’s opinion in Kik I and overrule part III of the Wesche opinion. We direct the trial court to vacate its order granting summary disposition in favor of the township and the township’s EMS with respect to plaintiff husband’s claim for loss of consortium arising from plaintiff wife’s injuries. Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Cavanagh, Smolensk, and Fort Hood, JJ., concurred with Borrello, J.	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PER CURIAM. The prosecution appeals as of right the trial court’s order granting defendant’s motion to dismiss three counts of being a felon in possession of a firearm, MCL 750.224f, and three counts of possessing a firearm during the commission of a felony, MCL 750.227b. We reverse and remand for proceedings consistent with this opinion. MCL 750.224f provides in relevant part: (1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist: (a) The person has paid all fines imposed for the violation. (b) The person has served all terms of imprisonment imposed for the violation. (c) The person has successfully completed all conditions of probation or parole imposed for the violation. (2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive or distribute a firearm in this state until all of the following circumstances exist: (a) The expiration of 5 years after all of the following circumstances exist: (i) The person has paid all fines imposed for the violation. (ii) The person has served all terms of imprisonment imposed for the violation. (iii) The person has successfully completed all conditions of probation or parole imposed for the violation. (b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to [MCL 28.424], (5) As used in this section, “felony” means a violation of a law of this state, or of another state, or of the Unites States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law. (6) As used in subsection (2), “specified felony” means a felony in which 1 or more of the following circumstances exist: (i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or the property of another may be used in the course of committing the offense. (ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance. (Hi) An element of that felony is the unlawful possession or distribution of a firearm. (iv) An element of that felony is the unlawful use of an explosive. (u) The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson. Defendant was convicted in 1975 of breaking and entering a sporting goods store in violation of MCL 750.110. Defendant applied for and was granted licenses to purchase handguns by the Muskegon County Sheriffs Department and was deemed eligible to purchase long guns from a federally licensed gun dealer. However, defendant did not seek restoration of his right to possess firearms from his local concealed weapons board pursuant to MCL 28.424. Defendant successfully moved the trial court to dismiss the instant charges on the basis that his prior conviction was not a specified felony under MCL 750.224f and, therefore, his right to possess firearms was automatically restored under MCL 750.224f(l) well before his arrest on the instant charges in September 2004. On appeal, the prosecution contends that defendant’s 1975 conviction constitutes a specified felony under MCL 750.224f and that, because defendant failed to have his right to possess firearms restored as required by MCL 750.224f(2)(b), the trial court erred in granting. defendant’s motion to dismiss. We agree. This Court has previously determined that breaking and entering a building in violation of MCL 750.110 is a specified felony within the meaning of MCL 750.224f. Tuggle v Dep’t of State Police, 269 Mich App 657, 663; 712 NW2d 750 (2005). That the Legislature also chose to separately identify breaking and entering an occupied dwelling as a specified felony, MCL 750.224f(6)(c), does not negate this conclusion. Id. at 664. Nor can this conclusion be avoided by judicial construction referring to and relying on legislative history. People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004). The plain language of MCL 750.224f(6) clearly and unambiguously includes breaking and entering as a specified felony because, by its nature, breaking and entering involves the use of physical force, or the substantial risk that physical force may be used, against the property of another in the commission of the offense. Tuggle, supra at 666-667. Therefore, the trial court erred in granting defendant’s motion to dismiss. Defendant also argues that, as applied to him in the instant case, MCL 750.224f is unconstitutionally vague. We disagree. “To determine whether a statute is void for vagueness, a court examines the entire text of the statute and gives the statute’s words their ordinary meanings.” People v Piper, 223 Mich App 642, 646; 567 NW2d 483 (1997). A statute is unconstitutionally vague if persons of ordinary intelligence must necessarily guess at its meaning. People v Munn, 198 Mich App 726, 727; 499 NW2d 459 (1993). MCL 750.224f(6)(i) plainly and unquestionably encompasses breaking and entering in violation of MCL 750.110. Tuggle, supra at 666-667. Therefore, defendant cannot establish that the statute is unconstitutionally vague. Stated differently, the ordinary and plain language of MCL 750.224f(6) provides, in clear and understandable terms, that a person who is convicted of a felony involving “the use, attempted use, or threatened use of force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used,” is subject to the more stringent requirements for restoration of firearms rights set forth in MCL 750.224f(2). Breaking and entering is a crime that clearly fits within the language. Therefore, the statute provides adequate notice to persons of ordinary intelligence concerning the conduct proscribed. Munn, supra at 727. Finally, defendant argues that the instant prosecution is barred by the doctrine of entrapment by estoppel because he applied for and received from appropriate governmental authorities licenses to purchase handguns and authorization to purchase firearms. The doctrine of entrapment by estoppel applies to preclude prosecution when a defendant establishes by a preponderance of the evidence (1) that a government official advised the defendant that certain illegal conduct was legal, (2) that the defendant actually relied on the government official’s statements, (3) that the defendant’s reliance was reasonable and in good faith given the identity of the government official, the point of law represented, and the substance of the official’s statements, and (4) that, given the defendant’s reliance, prosecution would be unfair. People v Woods, 241 Mich App 545, 558-560; 616 NW2d 211 (2000). As the Woods Court explained: [T]he defense should be utilized only where an earnest, law-abiding citizen attempts in good faith to comply with the law by consulting an appropriate government official, but unfortunately receives misinformation. These are circumstances where prosecution would be so unfair as to violate the citizen’s right to due process. However, when the citizen knows or should know better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee, prosecution is not unfair and estoppel by entrapment [sic] should have no application. [Id. at 560 (citation omitted).] When a defendant claims entrapment, including entrapment by estoppel, the proper procedure is for the trial court to hold an evidentiary hearing, at which the defendant bears the burden of proving entrapment by a preponderance of the evidence. Id. at 554. The trial court held an evidentiary hearing on defendant’s motion to dismiss. At that hearing, the trial court was presented with limited evidence relating to defendant’s purchase of certain firearms. However, the trial court made clear that the hearing was not for the purpose of determining whether defendant could establish entrapment by estoppel. The trial court made no determination whether defendant relied, reasonably and in good faith, on statements of a government official in acquiring and possessing firearms. Indeed, the trial court specifically declined to consider the testimony presented at the hearing, concluding that it was not pertinent to the question before it, that being whether defendant’s breaking and entering conviction constituted a specified felony under MCL 750.224f. Therefore, we remand this matter for the reinstate ment of the charges against defendant and for a proper consideration of defendant’s assertion of the defense of entrapment by estoppel. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.	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PER CURIAM. Defendants appeal by leave granted the trial court’s order denying their motion for summary disposition of plaintiffs’ claims pursuant to MCR 2.116(C)(7) (period of limitations). We affirm. I. FACTS This case arises out of plaintiffs refilling of a prescription at defendant Raksha Corporation, doing business as Crown Pharmacy, on November 11, 2000. Plaintiff presented a prescription for 0.125-milligram tablets of Mirapex. According to plaintiff, defendant Valerie Randall, who is not a pharmacist, and who was not acting under the supervision of a pharmacist, refilled the prescription with one-milligram tablets of Mirapex. On November 13, 2000, plaintiff took a one-milligram tablet in the afternoon, and two more tablets in the early evening. According to the complaint, after ingesting the two one-milligram tablets in the evening, plaintiff began to experience agitation, loss of balance, severe dizziness, and nausea. Plaintiff spent the next several hours sick to her stomach and vomiting. Plaintiffs husband, Joseph Kuznar, awoke to the sound of a loud “thump” in the bathroom around midnight, and discovered his wife unconscious with her head on the bathtub and not appearing to be breathing. Kuznar immediately drove her to Botsford Hospital, where she was treated in the emergency room for several hours, and where it was determined that she had sustained an adverse reaction to the one-milligram Mirapex tablets. After plaintiff was released from the hospital, she continued to suffer severe headaches, mental confusion, and had a large bump on her forehead, causing her to miss time from work. Plaintiffs filed their complaint on October 7, 2003. In regard to Crown Pharmacy, plaintiffs specifically alleged that it was negligent in: a. Failing to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage. b. Failing to timely recognize the error made in dispensing medications. c. Allowing persons other than a licensed pharmacist to refill prescriptions. d. Failing to have a licensed pharmacist available on site to oversee, supervise and control the actions of persons not pharmacists who refilled prescriptions. In regard to Randall, plaintiffs specifically alleged negligence in: a. Dispensing medication which she was not qualified to dispense as she was not a licensed pharmacist. b. Failing to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage. c. Failing to timely recognize the error made in dispensing medications. d. Failing to consult with a licensed pharmacist before dispensing medications. Defendants moved for summary disposition, arguing that, contrary to the allegations in plaintiffs’ complaint, plaintiffs’ claims sound in medical malpractice rather than negligence, and plaintiffs’ complaint was not timely filed within the two-year limitations period applicable to medical malpractice actions. Plaintiffs responded, arguing that Randall is not a licensed pharmacist and is, therefore, not subject to the medical malpractice statutes, and that no medical expert testimony would be necessary for a jury to understand that an unlicensed individual cannot dispense medication without the supervision of a licensed pharmacist, or that dispensing eight times the prescribed dosage is an error that can lead to foreseeable injury. The trial court denied defendants’ motion. Defendants appeal the trial court’s denial of summary disposition. Defendants contend, as they did below, that plaintiffs’ claims sound in medical malpractice, not ordinary negligence, and therefore plaintiffs’ complaint was not timely filed. Defendants argue that Crown Pharmacy is a licensed health facility, that Randall was an agent of that health facility, and that medical expert testimony will be necessary for a jury to determine whether there was negligence in the dispensing of medicine and in the supervision of Randall. II. ANALYSIS The issue presented is whether plaintiffs’ claims sound in medical malpractice or ordinary negligence. The answer to this question determines whether plaintiffs’ claims should have been dismissed for failure to file the complaint within the applicable statutory period of limitations. The statutory period of limitations for a medical malpractice action is two years, whereas the statutory period of limitations for an ordinary negligence action is three years. See MCL 600.5805(6) and MCL 600.5805(10). Defendants contend that plaintiffs alleged medical malpractice and their claims are barred by the two-year limitations period. We disagree. Whether a period of limitations applies in particular circumstances is a legal question that this Court considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444-445; 671 NW2d 150 (2003). We [also] review de novo decisions regarding summary disposition motions. Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court “consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004), quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001) (footnotes omitted).] In determining whether plaintiffs alleged medical malpractice or ordinary negligence, we disregard the label plaintiffs applied to their claims. It is well established that “the gravamen of an action is determined by reading the claim as a whole,” Simmons v Apex Drug Stores, Inc, 201 Mich App 250, 253; 506 NW2d 562 (1993), and by looking “beyond the procedural labels to determine the exact nature of the claim,” MacDonald v Barbarotto, 161 Mich App 542, 547; 411 NW2d 747 (1987). In Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004), our Supreme Court set forth the “two defining characteristics” of a medical malpractice claim: “First, medical malpractice can occur only ‘ “within the course of a professional relationship.” ’ Second, claims of medical malpractice necessarily ‘raise questions involving medical judgment.’ ” (Citations omitted.) The Bryant Court explained: A professional relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, were subject to a contractual duty that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff. [Id. (citations omitted).] Addressing the question whether the alleged negligence occurred within a professional relationship, we turn to relevant statutes bearing on the parties’ relationship. With respect to medical malpractice actions, MCL 600.5838a sets forth the time frames for pursuing such actions, which may be filed against “a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment....” MCL 600.5838a(l). Under § 5838a(l)(a), “ ‘Licensed health facility or agency’ means a health facility or agency licensed under article 17 of the public health code . .. being sections 333.20101 to 333.22260 .. . .” Because the licensure requirement applicable to a pharmacy appears in article 15 of the public health code, specifically MCL 333.17741, and not in article 17, a pharmacy does not qualify as a “licensed health facility or agency” subject to malpractice actions, as set forth in MCL 600.5838a(l). Although we conclude today that a pharmacy is not a licensed health facility subject to malpractice actions, we recognize that this Court has held that pharmacists are “licensed health care professionals” subject to medical malpractice actions: Pharmacists are considered health care providers for the purposes of our malpractice statutes. Becker v Meyer Rexall Drug Co, 141 Mich App 481, 485; 367 NW2d 424 (1985), citing MCL 333.17711; MSA 14.15(17711) (“A person shall not engage in the practice of pharmacy unless licensed or otherwise authorized by this article.”). The limitation period of MCL 600.5805(4); MSA 27A.5805(4)[ ] applies to an action where it is alleged that a licensed pharmacist mistakenly dispensed the wrong drug, thus harming the plaintiff. [Simmons, supra at 253.] In both Becker and Simmons, however, the plaintiffs alleged negligent acts by a pharmacist, Becker, supra at 483; Simmons, supra at 251. And a pharmacist is a “licensed health care professional.” MCL 600.5838a(l)(b). This case is distinguishable from Becker and Simmons in that plaintiffs have not alleged negligence of a licensed pharmacist, but rather of Randall, who is a pharmacy technician, not a licensed health care professional subject to malpractice suits under MCL 600.5838a(l)(b). We also recognize that this Court has held that, as contemplated by MCL 600.5838a(l), the negligent acts of unlicensed agents or employees of licensed health facilities may be subject to medical malpractice claims. Bell v Mikkola, 193 Mich App 708, 709-710; 485 NW2d 143 (1992). As explained above, however, Crown Pharmacy is not a “licensed health facility or agency” pursuant to MCL 600.5838a(l)(a). Because neither Randall nor Crown Pharmacy qualifies as a licensed health care professional or a licensed health facility, and because plaintiffs’ complaint does not allege negligent acts of a licensed pharmacist, we conclude that the alleged negligent acts of defendants did not occur in the course of a professional relationship with plaintiff. Given the absence of a professional relationship, we need not address the second defining characteristic of a medical malpractice claim, i.e., whether the alleged malpractice raises questions involving medical judgment. The absence of a professional relationship alone excludes plaintiffs’ claims from the realm of medical malpractice. Accordingly, the procedural and substantive requirements governing medical malpractice actions do not apply in this case. Bryant, supra at 422. Therefore, the trial court properly denied defendants’ motion for summary disposition premised on the two-year medical malpractice period of limitations. Plaintiffs timely commenced their negligence action on October 7, 2003, within three years of the alleged acts of negligence that occurred in November 2000. MCL 600.5805(10). Affirmed. Plaintiff Joseph Kuznar’s claims are derivative of plaintiff Judith Kuznar’s claims. For this reason, when used in the singular, “plaintiff” refers to Judith Kuznar. Defendants refer to Randall as a “pharmacy technician.” There are also procedural requirements that must be fulfilled to properly initiate a medical malpractice action. For example, a plaintiff must file, 182 days before the action is commenced, notice of intent to file suit, and file, along with the complaint, an affidavit of merit. MCL 600.2912b; MCL 600.2912d. It is undisputed that plaintiffs did not comply with these requirements. When the cause of action accrued in this case, November 2000, the medical malpractice period of limitations appeared at MCL 600.5805(5). This statute defines a “licensed health care professional” as “an individual licensed or registered under article 15 of the public health code .. . being sections 333.16101 to 333.18838,” and the licensure requirement applicable to pharmacists appears in article 15, specifically MCL 333.17711. Although the rationale supporting the trial court’s denial of summary disposition is not entirely clear, this Court will not reverse when a circuit court reaches a correct result for a wrong reason. Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 313; 696 NW2d 49 (2005).	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DONOFRIO, P.J. Plaintiff appeals as of right the trial court’s order granting summary disposition to defendants. This case involves a challenge to the authority of Bay Mills Community College (BMCC) to authorize “public school academies” also referred to as “charter schools.” Because we cannot conclude that plaintiff has standing to challenge the expenditure of state funds under the facts before us, we do not reach the substantive issue whether the public school academies BMCC has chartered are considered public schools and are eligible for public funding. We dismiss this appeal for lack of standing. I. FACTS BMCC is a land grant school recognized under the federal Tribally Controlled College or University Assistance Act and is accredited by the North Central Association of Colleges and Schools. According to its charter, BMCC’s district consists of the state of Michigan. BMCC’s charter provides its board with the authority to issue contracts to create chartered public schools as provided under Michigan law. The record reflects that since December 2000, BMCC has chartered and opened 32 public school academies. BMCC is run by a nine-member board of regents. Five of those regents are selected from the Bay Mills Indian Community Executive Council and serve two year terms. One is the business manager or representative of the Sault Ste. Marie Tribe of Chippewa Indians, one is the business manager or representative of the Grand Traverse Band of Ottawa/Chippewa Indians, one is the business manager or representative of the Little Traverse Bay Bands of Odawa Indians, and one is the executive director of the Inter-Tribal Council of Michigan, Inc. Additionally, there is one nonvoting member, the student body president of BMCC. Plaintiff Michigan Education Association (MEA) represents approximately 136,000 members throughout the state of Michigan, including about 70,000 grade K-12 instructors. Testimony reveals that each member pays approximately $600 a year in dues to the MEA. In the instant case, plaintiff brought suit alleging, among other things, that BMCC’s public chartered academies are not public schools and, therefore, the payment of public funds to BMCC’s public chartered academies violates the Michigan Constitution’s provision against public funding for nonpublic schools. The trial court dismissed all but the pubhc-funding count for lack of standing. The trial court found standing for this allegation on the basis of plaintiff meeting the legislatively conferred standing granted for a nonprofit organization contesting the expenditure of state funds. The trial court then ruled that the schools in question were public schools entitled to public funds. This appeal followed. II. ANALYSIS “Whether a party has legal standing to assert a claim [is] a question of law that we review de novo.” Heltzel v Heltzel, 248 Mich App 1, 28; 638 NW2d 123 (2001). “The question of jurisdiction is always within the scope of this Court’s review.” Walsh v Taylor, 263 Mich App 618, 622; 689 NW2d 506 (2004). A. CONSTITUTIONAL STANDING In this case, defendants argue that plaintiff does not meet the constitutional test required for standing and that the Legislature may not statutorily confer standing on a party that does not otherwise meet the constitutional requirements for standing. Plaintiff counters that, as a domestic nonprofit organization challenging the illegal expenditure of state funds, it has statutorily granted standing to institute this suit. We begin our analysis with the observation that our Supreme Court has indeed repeatedly endorsed the test for standing articulated by the United States Supreme Court in Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992). See Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 628-629; 684 NW2d 800 (2004); Crawford v Dep’t of Civil Service, 466 Mich 250, 258; 645 NW2d 6 (2002); Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739-740; 629 NW2d 900 (2001). In Nat'l Wildlife, our Supreme Court stated that, at a minimum, standing requires the following three elements: “First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly.. . traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Nat’l Wildlife, supra at 628-629, quoting Lee, supra at 739, quoting Lujan, supra at 560-561.] Thus, ordinarily, plaintiff must meet the constitutional minimum criteria for standing in order to have standing. First, plaintiff has neither alleged nor suffered the required “injury in fact.” Plaintiff presented no evidence that it suffered an invasion of a legally recognized interest that is actual or imminent, not hypothetical or conjectural. Specifically, our review of the record reveals that plaintiff provides nothing beyond bare assertions that the public funding of BMCC’s charter schools injures plaintiffs members, and does not identify an injury that is “ ‘concrete and particularized,’ ” and “ ‘ “actual or imminent.” ’ ” Nat’l Wildlife, supra at 628, quoting Lee, supra at 739, quoting Lujan, supra at 560. Any alleged injury to plaintiff is based on conjecture and speculation. Second, plaintiff has provided us nothing more than the simple assertion that BMCC’s public funding reduces plaintiffs members’ wages without any supporting evidence. While we can envision a scenario in the abstract in which BMCC’s public funding does indirectly or even directly reduce the wages or wage increases of plaintiffs members, it takes more than imagination to establish the required causation element of standing. Nat’l Wildlife, supra at 628-629, quoting Lee, supra at 739, quoting Lujan, supra at 560. Third, plaintiff has provided no substantive evidence that the alleged harm could even be “ ‘ “redressed by a favorable decision.” ’ ” Nat’l Wildlife, supra at 629, quoting Lee, supra at 739, quoting Lujan, supra at 561. Plaintiff offers no evidence to show that it is “ ‘ “likely,” ’ ” or even merely “ ‘ “speculative,” ’ ” that, if all public funds to BMCC schools are cut off, plaintiffs members’ salaries will increase. Nat’l Wildlife, supra at 629, quoting Lee, supra at 739, quoting Lujan at 561. There is absolutely no way to predict with any degree of certainty how the public dollars earmarked for BMCC schools would be appropriated if BMCC funding was discontinued. Plaintiff has provided no evidence whatsoever that these monies would be directly funneled into plaintiffs members’ salaries. More over, there is another possible scenario. Even if plaintiff were to prevail, the BMCC schools might switch to a different chartering organization, such as a school district or local community college, where they would again be eligible for public funding. Plaintiff has not provided, and we cannot ascertain, any means of redress by a favorable decision of this Court. Nat’l Wildlife, supra at 629. With myriad different scenarios possible, and not a shred of real evidence provided by plaintiff regarding any of the elements of standing, we must relegate its arguments to those of mere speculation, hypothesis, and conjecture. Mere hypothetical or conjectural injuries do not satisfy the constitutional requirements for standing. Nat’l Wildlife, supra at 628, quoting Lee, supra at 739, quoting Lujan, supra at 560. Therefore, plaintiff has not provided sufficient evidence to satisfy the constitutional elements required for standing. Nat’l Wildlife, supra at 628-629. b. statutorily conferred standing In Nat’l Wildlife, our Supreme Court extensively discussed standing requirements and specifically addressed whether the Legislature can confer standing by statute. Nat’l Wildlife, supra at 614-615. Our Supreme Court counseled that judicial power, while not specifically defined by the Michigan Constitution, “is distinct from both the legislative and executive powers.” Id. at 614. The Court elaborated, stating: Perhaps the most critical element of the “judicial power” has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, Muskrat v United States, 219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in which the plaintiff has suffered a “particularized” or per sonal injury. Massachusetts v Mellon, 262 US 447, 488; 43 Ct 597; [67 L Ed 1078] (1923). Such a “particularized” injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally. Id. [Id. at 615.] The Court indicated that without the particularized injury requirement, “there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate.” Id. It opined that those claims that did not meet the particularized injury requirement would inappropriately involve the judiciary in “deciding public policy, not in response to a real dispute in which a plaintiff had suffered a distinct and personal harm, but in response to a lawsuit from a citizen who had simply not prevailed in the representative processes of government.” Id. It went on to explain that this “expanded power” would have dire consequences, because it would grant the most power to the least accountable branch of the government. Id. at 615-616. The Nat’l Wildlife Court condemned the use of “the judicial branch as a forum for giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail.” Id. at 616. After engaging in a thorough analysis of both federal and state law, the Nat’l Wildlife Court ultimately opined that, but for a few enumerated exceptions, the definitions, of judicial power in the United States and Michigan constitutions are identical and that both require an actual case or controversy in order to establish standing. Nat’l Wildlife, supra at 624-625, 627-628. It was the position of our Supreme Court that to allow the Legislature to expand the powers of the judiciary by conferring standing on a party that does not otherwise meet the constitutional test for standing violates the separation of powers because it defies the long-held historical definition of “judicial power.” Id. at 615-616. In the end, however, the Court ultimately found it unnecessary to reach the issue of statutorily conferred standing because it found that the plaintiffs met the constitutional requirements for standing without regard to the statute involved. Id. at 632. Our Supreme Court again discussed the issue of statutorily conferred standing in Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286; 715 NW2d 846 (2006). In Federated Ins, the issue was whether the Attorney General had authority to intervene to appeal a judgment of the Court of Appeals on behalf of the people and a state agency when the named losing parties did not themselves seek review in the Supreme Court, which implicated the constitutional authority of the judiciary. Id. at 288, 290. The Attorney General argued that he had authority to intervene on the basis of two statutes, MCL 14.101 and MCL 14.28. Id. at 293-294. While both relying on and further expanding its discussion of standing in Nat’l Wildlife, our Supreme Court held that the Attorney General had no authority to intervene to appeal the Court of Appeals judgment under these statutes because a justiciable controversy no longer existed in light of the fact that the Attorney General did not represent an “aggrieved party.” Id. at 290-295, 297. In particular, the Supreme Court held: To the extent one might read MCL 14.101 or MCL 14.28 as allowing the Attorney General to prosecute an appeal from a lower court ruling without the losing party below also appealing, and without the Attorney General himself being or representing an aggrieved party, the statutes would exceed the Legislature’s authority because, except where expressly provided, this Court is not constitutionally authorized to hear nonjusticiable controversies. Nat’l 'Wildlife Federation, supra at 614-615. To give these statutes such a reading would contravene an operative presumption of this Court that we presume constitutional intent on the part of the Legislature. See Phillips v Mirac, Inc, 470 Mich 415, 422, 685 NW2d 174 (2004). [Federated Ins, supra at 294-295.] This Court has also discussed the issue of statutorily conferred standing in Michigan Citizens for Water Conservation v Nestle Waters North America Inc, 269 Mich App 25; 709 NW2d 174 (2005). In Michigan Citizens, the issue presented was whether the plaintiffs had standing to bring suit under MCL 324.1701(1) when they could not otherwise demonstrate that they suffered a particularized injury and could not otherwise establish constitutional standing under the test stated in Lee. Id. at 85. While the Michigan Citizens panel members did not ultimately agree regarding the Legislature’s grant of standing under the specific facts of that case, id. at 112-114 (opinions of MURPHY, RJ., and WHITE, J.), we find Judge SMOLENSKl’s analysis in the lead opinion instructive. Judge SMOLENSKI counseled as follows: Although the majority in [Nat’l Wildlife] declined to specifically examine the constitutionality of MCL 324.1701(1), it clearly determined that the Legislature was without the authority to expand standing beyond the limits imposed by Michigan’s constitution. Because the Court in [Nat’l Wildlife] intentionally took up and discussed the Legislature’s authority to confer broader standing, its decision on that matter is binding on this Court. People v Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001). Consequently, we must hold that, to the extent that it confers standing broader than the limits imposed by Michigan’s constitution, as determined by Lee and [Nat’l Wildlife], MCL 324.1701(1) is unconstitutional. [Id. at 87.] Here, plaintiff argues that it has standing to challenge the expenditure of public funds pursuant to the Michigan Constitution’s provision forbidding the expenditure of public funds on nonpublic schools, Const 1963, art 8, § 2, by way of MCL 600.2041(3) and MCR 2.201(B)(4). Const 1963, art 8, § 2 states: The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school. MCL 600.2041(3) provides in relevant part that “an action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute relating thereto may be brought in the name of a domestic nonprofit corporation organized for civic, protective, or improvement purposes . ..MCR 2.201(B)(4)(a) likewise provides that an action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute in this regard may be brought by a domestic nonprofit corporation organized for civic, protective, or improvement purposes. It is plaintiffs argument that state funding for schools chartered by BMCC violates Const 1963, art 8, § 2, and therefore it, as a nonprofit organization, has standing to sue on behalf of the interests of its members if the members would have standing to sue individually, by operation of MCL 600.2041(3) and MCR 2.201(B)(4). Nat’l Wildlife, supra at 629; Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83, 90; 662 NW2d 387 (2003). It is beyond reasonable dispute that plaintiffs membership includes Michigan taxpayers. Thus, were plaintiff able to meet the constitutional requirements for standing, we would conclude that plaintiff has standing to sue to indicate its taxpayer-members’ interests in challenging an expenditure of state funds that allegedly violate the specific constitutional bar on state funding of nonpublic schools. But we are required to follow our Supreme Court’s decision on the matter of the Legislature’s authority to confer broader standing. Higuera, supra at 437. We have clearly determined that plaintiff cannot establish the constitutional elements for standing. Consequently, we hold that to the extent that MCL 600.2041(3) and MCR 2.201(B)(4) confer standing broader than the limits imposed by Michigan’s constitution, as determined by Lee and Nat’l Wildlife, MCL 600.2041(3) and MCR 2.201(B)(4) are unconstitutional. III. CONCLUSION Plaintiff lacks standing because it has no claim of an actual, particularized injury. To the extent that MCL 600.2041(3) and MCR 2.201(B)(4) confer standing broader than the limits imposed by Michigan’s constitution, they are unconstitutional and do not confer standing on plaintiff to bring suit. Because we cannot conclude that plaintiff has standing to challenge the expenditure of state funds under the facts before us, we do not reach the substantive issue whether the public academies BMCC has chartered are considered public schools and are eligible for public funding. Dismissed. The exceptions listed included the ability of the Michigan Supreme Court to offer advisory opinions, the ability of taxpayers to sue to enforce the Headlee Amendment, and the ability of any citizen of the state to bring injunctive or mandamus proceedings to enforce state civil service laws. Nat’l Wildlife, supra at 624-625.	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Per Curiam. This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve a conflict that arose between our decision in Mazumder v Univ of Michigan Regents, 270 Mich App 42; 715 NW2d 96 (2006), and our later decision in this case, Ward v Siano, 270 Mich App 584; 718 NW2d 371 (2006), vacated in part 270 Mich App 801 (2006). Pursuant to our conflict resolution rules, this Court vacated those portions of Ward that conflicted with Mazumder. MCR 7.215(J)(5). We now address the issue that the original panel in Ward would have decided differently if it were not bound to follow Mazumder. MCR 7.215(J)(1), (2). The issue is whether a wrongful death plaintiff may rely on equitable tolling to escape the retroactive effect of our Supreme Court’s decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). In Waltz, our Supreme Court stated that the two-year period contained in the wrongful death saving statute, MCL 600.5852, was not tolled by serving a medical malpractice defendant with a notice of intent to sue. Waltz, supra at 655. Our Court recently reaffirmed that Waltz applies retroactively, Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 507-510; 722 NW2d 666 (2006), so plaintiffs who filed before Waltz, but incorrectly and detrimentally relied on their notice of intent to sue to toll the running of the saving statute, are barred from pursuing their claims. In Mazumder, supra at 62, however, this Court applied the doctrine of equitable tolling to a plaintiff who had relied on her understanding of the law as it existed before Waltz was issued. The dissent in Mazumder pointed out that uniform application of equitable tolling to similar plaintiffs would effectively circumvent those decisions that applied Waltz retroactively. Mazumder, supra at 71-72 (HOEKSTRA, EJ., concurring in part, dissenting in part). In our previous opinion in this case, this Court agreed that the retroactive application of Waltz could not coexist with a blanket exception of equitable tolling woven solely from the general unfairness of retroactively applying Waltz. We concur with that reasoning. Because our Court has held that Waltz applies retroactively, we resolve the conflict in favor of our initial opinion in this case. We reinstate its reasoning and adopt it as the rule of law. Equitable or judicial tolling ordinarily applies to a specific extraordinary situation in which it would be unfair to allow a statute of limitations defense to prevail because of the defendant’s bad faith or other particular and unusual inequities. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564. Absent statutory language allowing it, judicial tolling is generally unavailable to remedy a plaintiffs failure to comply with express statutory time requirements. See 51 Am Jur 2d, Limitation of Actions, § 177, p 565 (“Equitable tolling is not permissible if it is inconsistent with the text of the relevant statute.”); see also Secura Ins Co v Auto-Owners Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000); Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 285 n 12; 696 NW2d 646 (2005). Inequities that justify judicial tolling must arise independently of the plaintiffs failure to diligently pursue the claim in accordance with the statute. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565; see also Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586, 590-592; 702 NW2d 539 (2005). In Waltz, supra, our Supreme Court held that the plain language of MCL 600.5856 prevented it from tolling the saving statute, MCL 600.5852. The Court resolved the dispute over the relevant time frames specifically on the basis of statutory interpretation. Waltz, supra at 651-652. Therefore, it essentially concluded that the Legislature never intended to allow a personal representative to bring a wrongful death claim outside the two-year period in MCL 600.5852, despite the filing of a notice of intent to sue. See id. at 651. In light of Waltz, any attempt on our part to excuse nonconformity with the statute would amount to amending the statute — in effect, legislating from the bench. See Devillers, supra at 590 n 65. This is not the function of the judiciary. Id. Although a court may limit its novel interpretation of a statute to prospective application, Pohutski v City of Allen Park, 465 Mich 675, 696-697; 641 NW2d 219 (2002); see also Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004), this Court has held that Waltz has full retroactive effect. Mullins, supra at 507-510. To allow a wholesale disregard of Waltz's retroactive application on the basis of individual “unfairness” to each plaintiff would allow the constant exceptions collectively to swallow the rule. See Devillers, supra at 586-587, 590 n 65. The delicate and specialized tool of judicial tolling is ill-suited to supplant the expansive, all-encompassing remedy of limiting a rule to prospective application. By proposing to apply judicial tolling to every medical malpractice wrongful death plaintiff who is “unfairly” subjected to the time limits clarified in Waltz, the rationale of Mazumder subverts, piecemeal, our decision that Waltz applies retroactively. Stated differently, if reliance on the pre-Waltz understanding of the law were alone sufficient to justify a litigant’s failure to comply with Waltz’s standards, our appellate courts would have limited the decision to prospective application. They did not. In our original decision in this case, as in Mazumder, plaintiff failed to demonstrate any inequity independent of his unknowing failure to comply with the retroactive time limits delineated in Waltz. This “inequity” is inadequate to sustain a claim for judicial tolling, because it is directly related to plaintiffs unassisted failure to comply with the retroactively applicable time restraints, not on intervening, external circumstances. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565. Therefore, we adopt the reasoning contained in Ward, conclude that judicial tolling should not operate to relieve wrongful death plaintiffs from complying with Waltz’s time restraints, and overrule those portions of Mazumder that conflict with this opinion. The circuit court’s order granting summary disposition to defendants is affirmed. SAWYER, EJ., and SAAD, Zahra, and Owens, JJ., concurred. FORT Hood, J., concurred in the result only.	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Snow, J. The defendant is a Michigan corporation, and on or about October 23, 1920, it sold to plaintiffs $1,100 of its capital stock, without first having applied to the Michigan securities commission for, or having obtained, permission to make such sale under sections 11945 to 11969 of the Compiled Laws for 1915. Section 11958 provides: “It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State, any stocks, bonds or other securities (except as expressly exempt herein), unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * * Section 11967 provides: “Any person or persons who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor.” * * * This act, commonly known as the “blue sky law,” was amended in 1921 (Act No. 404, Pub. Acts 1921 [Comp. Laws Supp. 1922, §§ 11945-11969]) and re pealed in 1923 by Act No. 220, Pub. Acts 1923. It was however in force when the sale of stock in the instant case was made, but had been repealed when action to recover the amount paid for the stock was commenced, which was in July, 1925. The facts are not in dispute, but defendant contends that the repeal of the 1915 statute had the effect of abolishing plaintiff’s cause of action, which is particularly evidenced by the following saving clause in the 1923 act, viz.: “All proceedings pending before said Michigan .securities commission created by said act number .forty-six of the Public Acts of nineteen hundred ■fifteen, by virtue of any law of this State, shall be continued by the commission created by this act; all actions, civil and criminal, pending under said act, shall be continued and completed thereunder; and all securities approved by the Michigan securities commission under act number forty-six of the Public Acts of nineteen hundred fifteen, shall be legally salable unless otherwise ordered by the commission created under this act.”' * * * Act No. 220, Pub. Acts 1923, § 1. . This is the only question in the case. The sale of the stock to plaintiffs in the first instance was admittedly unlawful. Section 11958, 3 Comp. Laws 1915; Edward v. Ioor, 205 Mich. 617, 624 (15 A. L. R. 256); and Farm Products Co. v. Jordan, 229 Mich. 235. Plaintiffs had the right to rescind the contract of purchase and recover their money back. Was this right of action defeated by the repeal of the statute above referred to? We are constrained to hold that it was not. Neither the remedy nor the right of action were afforded by the statute. They existed independent of it, and the repeal of the statute in no way affected them. Neither can it with reason be .contended that section 1 of Act No. 220, Pub. Acts 1923, above referred to (which provided for the continuance before the newly- created commission of all pending matters before the old one, together with the continuance and completion of all actions under the act then pending and uncompleted) , constituted a bar to other rights of action that had accrued by reason of previous violations of the law repealed, although not then commenced. Plaintiff’s right of action in the instant case is not under the 1915 blue sky law, but accrues to them as a contract right of rescission, followed by the right to prosecute an action of assumpsit, because defendant sold them stock in its corporation when it was illegal to do so. The judgment of the circuit court is affirmed, with costs to appellee. Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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Steere, J. Plaintiff filed this bill asking a receivership, injunction and accounting based on an alleged agreement between the parties named in the bill as a joint adventure with defendant. In a subsequent affidavit and his testimony at the hearing he calls it a partnership. Defendant answered issuably directly denying any contractual relations whatever between it and plaintiff. Plaintiff alleges in his bill that on September 6, 1923, he entered into an agreement with defendant— “to look after the building operations of fifteen (15) buildings which were to be constructed and were con structed on lots hereinafter described.upon the following terms and conditions: “(a) Said plaintiff was to receive a sum of one hundred ($100.00) dollars per week, as a drawing account commencing on September 13th, A. D. 1923, and continuing each week thereafter until the buildings were completed, and was to receive in addition thereto twenty-five (25%) per cent, of the profits, which profits and drawing account should not, in any event, be less than ten thousand ($10,000.00) dollars per year, or on a basis of ten thousand ($10,000.00) dollars per year, and said defendant was to pay said plaintiff his share of profits upon completion and sale of each of said buildings.” He further alleges that he commenced work for defendant on September 6, 1923, and continued to March 4, 1924, when the buildings were finished and his work ended; that the various lots with the buildings constructed under his management were sold by defendant, but although he called upon defendant “at least a dozen times and asked for an accounting and for his division of the proceeds” defendant refused him, ignoring his “rights and demands in said matter,” to secure which he filed this bill. Upon the trial it was shown without dispute that defendant Menzies Real Homes Company was a corporation which had been engaged in the real estate business in Detroit for a number of years, buying, selling, leasing, and at times building upon its property, for lease or sale. At the time of the transaction involved here it owned and was managing a valuable quantity of unimproved and improved real estate in various parts of Detroit. It had some stores on Livernois avenue, a garage property on Cass avenue rented to the General Motors Company for $18,000 a year, one piece of its property on Cass avenue alone being appraised at between $300,000 and $400,000. H. D. Menzies is defendant’s president and Leslie J. Menzies its secretary. They own most of its stock and manage its business. It was their claim that the corporation had ceased its building activities as such about 1921, and since then had confined itself to collecting its rents, reinvestments, and management of its property, although they two had at times since then, as individuals or under separate companies, engaged in some building projects, and the contract or joint venture involved here, was entirely with them personally, of which plaintiff was fully advised from the beginning. Following the hearing the trial court found that the contract on which plaintiff’s bill was based was with H. D. Menzies and Leslie J. Menzies personally and not with the defendant corporation which he had sued, and entered a decree dismissing his bill, with costs to defendant, but prior to the decree an opinion was filed discussing the salient issues raised at the hearing, in which the court not only held there were no contractual relations between plaintiff and defendant but found the contract or joint adventure between him and the Menzies was financed by H. D. Menzies with the credit or assistance of defendant, to protect which, title to the lots upon which the buildings were erected was held in defendant’s name— “by virtue of a trust relation for the benefit of the plaintiff and the other two individuals involved. And it was the understanding of these three individuals that when necessary to convey titles to the lots acquired, they would be conveyed by its officers, the two Messrs. Menzies, to any appropriate grantee, or vendee, at the actual cost price to the defendant corporation of the lots.” The court also found the contract different in certain material particulars from plaintiff’s- contention; that some of the houses and lots had not yet been sold and contracts with small payments down under which others had been sold were doubtful assets for their determining profits; and held in substance that in any aspect of the transaction plaintiff’s demand for an accounting was premature. The controlling and final question in the case as decided by the trial court was whether the contract, whatever its terms or significance, was between plaintiff and the defendant corporation. On that question, the burden of proof was on plaintiff. If the court rightly held that he failed to sustain it by a preponderance of evidence and no contract relations were shown between the parties to the suit, that ended the case. What further was said in the court’s opinion is upon points not necessarily involved in the determination of the cause and but obiter dictum, which calls for no review of the arguments of counsel in relation to it. The contract was concededly oral and the only parties present at its making were plaintiff and the two Menzies. Plaintiff testified it was with the corporation through them acting as its officers. This they specifically denied, claiming it was distinctly with them personally and plaintiff was fully informed of the fact at that time. Assuming all three equally creditable, upon that direct contradiction he failed to sustain the burden of proof; but a comparison of his testimony and theirs as to disputed and undisputed facts makes their story more convincing and persuasive. The undisputed testimony shows that prior to this time the two Menzies had personally made a similar contract of partnership or joint adventure with an architect named Harry C. Vicary. He proved to be an office man without the experience and capacity to profitably and efficiently handle the actual work of construction and their agreement with him, which was in writing, was ended by an amicable adjustment before the number of houses intended had been built. This contract, which was produced in evidence at the hearing, is brief and graphic, made directly between H. D. Menzies and Leslie J. Menzies, and Harry C. Vicary “for the purpose of building and selling houses.” By it H. D. Menzies was to furnish the necessary capital and “devote some time to the enterprise,” while Vicary and Leslie 3. Menzies were to devote their entire time and energy to the project. Each party was to draw $300 per month as salary to be charged directly as overhead to the cost of the houses with other expenses such as office rent, heat, light, stationery, clerical help, discount of contracts, etc. The ultimate profits, if any, after all expenses had been taken into consideration, were to be divided as follows: “H. D. Menzies, 50 per cent.; L. J. Menzies, 25 per cent.; H. C. Vicary, 25 per cent.” Plaintiff was known as a practical builder with years of experience and about that time had no building projects on hand. The Menzies communicated with him and made arrangements for him to take, charge of and continue the work. Their testimony is that when negotiations were opened with him they fully explained the situation and showed him the written contract with Vicary, proposing that he take charge of and manage the work under a similar agreement. Plaintiff squarely denies their having shown or told him of this contract, although he admits he learned of Vicary doing work of that kind before him and that in performing his contract he constructed buildings on basements already dug or partly dug by some one but he did not know by whom. It is conceded that in their negotiations he declined to enter into the project on the monthly drawing account of $300 which they proposed but insisted on more, and they finally agreed upon $400 a month. He also adds to the contract as stated by him in his bill of complaint that it was agreed the land contracts should be discounted at a flat rate of 15 per cent. This, according to the testimony, is made highly improbable by proof of the difficulty of discounting contracts sold on small pay ments down and long time deferred payments; as is also his claim of a guaranty to him of $10,000 a year in a venture of this kind in which he only invested his services, for which he was sure of $100 per week whether the venture proved profitable or entailed a loss to his co-adventurers, and which the Menzies say they first heard of when his bill was filed. Their testimony is also in direct conflict as to what was said with regard to the contract being in writing. Plaintiff was asked and answered: “Q. Was that agreement to be in writing? “A. Yes, sir. “Q. And to be written by whom, and who were to be the parties to it? “A. The Menzies Real Homes Company and the parties were to be H. D. Menzies, Leslie Menzies and Jay H. Murray. “Q. Thereafter did you ask them for a written agreement, to be put in writing? “A. Yes, sir.” This is also flatly denied by the Menzies. H. D. Menzies testified that in a subsequent talk about it he proposed to give plaintiff a letter on the subject “so we will understand just where we stand,” and he replied it was not necessary, “we understand one another.” Plaintiff was a building contractor, had himself engaged in building houses to sell, was experienced in the cost and uncertainties of such enterprises, said he knew what he was getting into, and “was not a babe in the woods.” He claimed total ignorance of matters in connection with this transaction which taxes credulity. His testimony was self-contradictory and reckless in parts. We find no occasion to disturb the conclusion reached by the court below that plaintiff failed to show by a preponderance of convincing evidence that the contract he relied on was between him and the named defendant in this case. Without prejudice to other or different proceedings in relation to the transaction shown, the decree dismissing plaintiff’s bill will stand affirmed, with costs to defendant. Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Justice Moore took no part in this decision.	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Snow, J. Plaintiffs are building contractors in Detroit and contracted with the board of education to build an addition to the Noble school for the sum of $349,870. They sublet the heating and plumbing to Irvine & Meier, Incorporated, for $80,226. This concern failed before it had completed the work and went into bankruptcy, and plaintiffs were compelled to finish it. Plaintiffs had paid them when they quit the job all but $14,665.97 of the contract price, and, after plaintiffs had finished the work, they claim they still had in their possession approximately $10,000 of this amount, which they now hold. Irvine & Meier, Incorporated, when it abandoned the job, owed to some 30 different concerns about $23,000 for labor and materials furnished it in its work on the building, and several of them commenced suits against plaintiffs and the Southern Surety Company, surety on their bond, to recover therefor. The plaintiffs then filed in the circuit court in chancery for the county of Wayne a bill of interpleader, alleging in substance that they had in their possession belonging to the Irvine & Meier concern about $10,000, which was claimed by the various creditors and the trustee in bankruptcy of the Irvine & Meier estate, and that they were threatened with various suits and were being vexed and harassed, and did not know to whom the fund belonged. They prayed for the right to pay the amount they owed Irvine & Meier into court, and to be released and discharged from all liability to any of the said defendants. The defendant A. Harvey’s Sons Manufacturing Company moved to dismiss plaintiffs’ bill of complaint, and from an order granting such motion the plaintiffs appeal. The only question for consideration is as to whether or not, under the facts and circumstances narrated, plaintiffs are entitled to file a bill of interpleader, or one in the nature of such a bill, and secure a discharge from all actions the creditors of Irvine & Meier might institute. Plaintiffs allege in their bill of complaint that Irviné & Meier, Incorporated, listed in its schedules in the bankruptcy proceeding the sum of $13,712.62 as the amount due from plaintiffs, which amount, or so much thereof as may be actually due, the trustee therein claims. They allege also that the claims made against Irvine & Meier aggregate approximately $23,000, and that they owe them approximately $10,000. This amount is arrived at by plaintiffs after subtracting from the contract price the amount paid to Irvine & Meier plus the amount it cost them to finish the job. But it is the claim of defendants that more was paid on the contract than the statute permits, and that the amount in the hands of plaintiffs is uncertain and must be determined. “The amount due from a plaintiff cannot be the subject of controversy in an action of interpleader; the action can only be maintained when plaintiff admits liability, for the full amount claimed, to one or the other of the claimants.” Baltimore & Ohio R. Co. v. Arthur, 90 N. Y. 234. See Maxim v. Shotwell, 209 Mich, at p. 84, and cases there cited. This uncertainty of the exact sum in the hands of the plaintiffs and the necessity for its determination are in themselves fatal to the right to maintain a bill of interpleader. But other facts stand in the way of plaintiffs’ right to an interpleader. They were contractors to build a public building, and by virtue of the statute provided in such case (3 Comp. Laws 1915, §§ 14827-14830), executed a bond with the Southern Surety Company as surety. As stated, several actions by the various defendants have been commenced against plaintiffs and the surety company, claiming right to recover against them by virtue of the statute referred to. Right to recover may exist in some of these actions and not in others. Such rights cannot be litigated in an interpleader suit, especially as the surety company, against which liability is claimed, is not even made a party in such suit; nor can the aid of the court be invoked by injunction restraining these claimants from recovering the full amount of their claims against the surety company if liability exists. The bill cannot be maintained as one in the nature of a bill of interpleader, as the plaintiffs seek no relief of an equitable nature in addition to the interpleader of conflicting claimants. See Maxim v. Shotwell, 209 Mich, at p. 85. Being impressed, from plaintiffs’ bill, with the correctness of appellees’ contention that plaintiffs are not disinterested stakeholders of a sum certain in amount, and that the surety company ought not and cannot be absolved from its liability on the bond (if such in fact exists) by an action of this sort which deprives defendants of their rights to proceed against it, we must hold the bill to have been improperly filed and the action without merit. The order of the trial court in dismissing the same is affirmed, with costs to appellees. Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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McDonald, J. This is an action to recover damages arising from breach of contract for the co-operative marketing of potatoes. The plaintiff had judg-' ment and the defendant has brought error. The case was tried on a stipulated statement of facts from which it appears that the plaintiff is a nonprofit co-operative association, organized under chapter 4, part 2, of Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [78] et seq.), for the purpose of grading and preparing potatoes for shipment and sale; for advertising, marketing, selling, and shipping; and for fostering and encouraging the interest of farmers in the development of co-operative activities in agriculture. It is a member of the Michigan Potato Growers Exchange, also a nonprofit corporation having a membership of about 75 local associations. When it was desired to organize the plaintiff association, the promoters, in company with solicitors from the Michigan Potato Growers Exchange, called upon the potato growers in the market area of the village of Hart, and secured preliminary contracts with an association to be formed, the contracts not to become operative until similar contracts were secured from the growers of 50 per cent, of the commercial potato acreage within the market area. The defendant signed one of these contracts on the 20th of June, 1925. Before July 10, 1925, similar contracts had been secured from other growers covering more than 50 per cent, of the commercial acreage of all potatoes grown within the market area. The defendant was then notified, in writing, that his contract had become operative and binding. On June 23, 1925, a preliminary organization meeting was held at which the name of the plaintiff associa tion was adopted. Articles of association were signed September 17, 1925, but were not filed with the secretary of State until October 12, 1925, and with the county clerk on October 15, 1925. The contracts gave the plaintiff the exclusive right to handle and market all potatoes grown by its members within the Hart market area, and provided for the payment of damages by the growers if they failed to1 comply in that particular. It is conceded that the defendant violated this provision of the contract in the month of November, 1925, by selling potatoes to persons other than the plaintiff association. To recover damages for this breach the plaintiff brought its action. The sole question involved is as to the validity of the contract. It is first contended by counsel for the defendant that when the contract was made the plaintiff had no legal existence, that it was not authorized to transact any corporate business, had not complied with the law by paying the franchise fee which such a corporation must pay, and that, therefore, the contract was wholly void under section 11352, 3 Comp. Laws 1915, which declares that “all contracts made in this State after the first day of January, 1894, by any corporation which has not first complied with the provisions of this act shall be wholly void.” We think that section of the statute has no* application to this contract. The plaintiff company was organized under Act No. 84, Pub. Acts 1921. Part 1, chap. 2, § 2 (Comp. Laws Supp. 1922, § 9053 [12.]), provides for the filing of the articles of association, payment of franchise and certificate fees, and the issuance by the secretary of State of his written authority to the corporation to commence business. Immediately following this is the proviso: “Provided, however, That no contract made by the incorporators preliminary to the filing of such articles shall be deemed to be invalid or ineffectual because made prior to such filing, and all property held by such incorporators for the benefit of the proposed corporation shall be deemed to be property of such corporation for the purpose of complying with section one of this chapter.” This provision of the statute settles the question adversely to the defendant’s contention. It is further argued by counsel for the defendant that the contract is not binding or enforceable because it is unilateral; that it is a one-party contract, wanting in mutuality, signed in the first instance by the defendant alone and later by the plaintiff at a time when it had no corporate existence. Their position on this question is stated in their brief as follows: “It is admitted that at the time Ed. Greiner signed this so-called contract, that the name of the first party had not yet been determined. It stood as a contract between Ed. Greiner and an unnamed first party. That later a meeting was held at which Ed. Greiner was not present and it was then determined that the name of the first party to said contract should be ‘Hart Potato Growers Association.’ And later, and not until the 12th day of October, was there such a corporation as the plaintiff. Thus from June 20th to October 12th, 1925, there was only one party to this so-called contract. Certainly until October 12th, 1925, this was a one-party contract with no one.” It is true that the so-called contract did not become binding and operative when the defendant signed it. It was not intended that it should. In fact, it was not a contract at all, but merely an open and continuing offer which ripened into a contract when the conditions were met by those who were promoting the plaintiff company. These conditions were that they should organize a co-operative marketing association and secure similar contracts from other growers representing 50 per cent, of the commercial acreage in the Hart area. They accomplished both of these things, but before the organization was legally perfected the incorporators signed the name of the proposed corporation to the contract. The statute, pt. 1, chap. 2, § 2, Act No. 84, Pub. Acts 1921, declares such preliminary organization contracts by incor-porators to be legal. But, regardless of this statute, they become contracts enforceable by and against the corporation when the board of directors by resolution “approved, ratified, and adopted” them. On his part the defendant recognized and treated the contract as valid by delivering potatoes to the plaintiff after he had been notified of its acceptance. Our conclusion is that it is valid and binding. The defendant made an offer in writing to enter into a contract with a corporation to be formed, and he kept the offer open until it was accepted by the incor-porators. We think, in view of the language of the statute, it then became effective. But, if not then, it became effective beyond question when accepted and adopted by the corporation after it became legally entitled to commence its corporate business. 17 A. L. R. p. 462; 14 C. J. p. 257; 7 R. C. L. p. 81. The judgment of the circuit court is affirmed, with costs to the plaintiff. Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.	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McDonald, J. The defendants are traveling evangelists. They were convicted of resisting the execution of an ordinance and the order of the mayor of Alma, Michigan. The people’s testimony tends to show that the defendants began holding religious meetings on July 13, 1925, in Wright Park, a city park in Alma, Michigan. The park adjoins the Michigan Old People’s Masonic Home and Hospital. No formal permission was given by the city, but the meetings continued without objection until complaints came in of excessive noise and misuse of the park. The city commission- then decided to deny the use of the park to the defendants after Saturday, July 18, 1925, and left the matter to the mayor, the city manager, and the chief of police, who caused the defendants to be notified that the meetings must be discontinued after Saturday night. Notwithstanding this notice, the defendants announced that meetings would be held as usual. The defendant King spoke in defiance of the city authorities, told the people that they were not living in Rome, that the park belonged to them, and the mayor had no right to deny to them the use of it. By order of the mayor, the park was closed on Sunday, July 19, 1925. The gates were roped off and the chief of police, with several regular policemen and special officers, were stationed at the park to prevent its use by the defendants. Before the time announced for the meeting, the mayor went to the park and talked to the defendants. He told them that they could not use the park. Defendant King insisted that the mayor was wrong, and said that, notwithstanding his order, they would hold their meetings. Two of the defendants sought places of entrance not guarded by the police, and entered the park. They were ejected. They then addressed the people who had congregated in large numbers on the outside, and advised them to break down the fence and go into the park. The crowd followed this advice, and broke over into the park in spite of the efforts of the officers to restrain them. The meeting was held according to schedule. This prosecution followed. The defendants denied many of the claims of the people though there is little dispute as to the material facts. They were convicted and have brought the case to this court on exceptions before sentence. The errors assigned relate to the admission of evidence, to' the refusal to give certain requests, and to the charge as given. The prosecution was brought under section 14994, 3 Comp. Laws 1915, which provides: “If any person shall knowingly and wilfully obstruct, resist, or oppose any sheriff, coroner, township treasurer, constable, or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or shall resist any officer in the execution of any ordinance, by-law, or any rule, order or resolution made, issued or passed by the common council of any city, board of trustees or common council or village council of any incorporated village or township board of any township, or shall assault, beat or wound any sheriff, coroner, township treasurer, constable, or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served or attempted to serve or execute the same, or shall so obstruct, ’ resist, oppose,- assault, beat, or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve, and keep the peace, every person so offending shall, on conviction thereof, be punished.” * * * The first question discussed in defendants’ brief is presented by ten requests to charge, and in substance is, that the court should have held, as a matter of law, that there was no question for the jury, and should have directed a verdict of not guilty. In other words, it is the defendants’ claim that there was no offense committed under the statute; that the order of the mayor was not such an order as is contemplated by the statute; that the officers were not engaged in the execution of an ordinance; and that, considering the testimony most favorable to the people’s case, the defendants were guilty of nothing more than a violation of an ordinance. The ordinance in question is known as ordinance No. 67, and is entitled: “An ordinance to regulate the use of the public parks of the city of Alma, Michigan.” The applicable part reads as follows: “No person shall deliver any oration, address, speech, sermon, or lecture therein unless he shall have first received permission from the common council of the city of Alma, or the mayor or other lawful authority so to do; nor shall any public meeting be held therein unless leave is first obtained.” The statute under which this prosecution is brought makes it an offense for any person to “resist any officer in the execution of an ordinance,” etc. Counsel for the defendants insist that, at the time when the offense is alleged to have been committed, the officers were not engaged in the execution of an ordinance. They base this contention on a distinction which they seek to draw between the execution of an ordinance and an effort to prevent its breach. To execute an ordinance, within the meaning of the statute, is to carry it into effect, to enforce its commands. The purpose of this ordinance is to regulate the use of public parks. One of the regulations is that such a park shall not be used for public meetings without permission. In issuing a permit or preventing the use of the park when a permit has been refused, the officers are carrying into effect the purpose of the ordinance. They are executing it. The contention of counsel is wholly without merit. At the time of the alleged offense the officers were engaged in the execution of an ordinance. Equally without merit is the claim that the only order contemplated by the statute is a court order. The statute expressly states an “order made or issued by lawful authority.” The ordinance authorizes the mayor to issue permits for the use of the park. It was his duty to enforce the ordinance. He could only do so by direction to the chief of police; and when he ordered the chief to prevent the defendants from using the park on the day in question, it was an “order issued by lawful authority.” The court correctly overruled the defendants’ contention that if there had been any offense committed, it was merely a violation of the ordinance and not of the statute. The objections to the refusal of the court to submit certain requests to the jury and to the charge as given may be answered by saying that if there were any errors committed in respect to those matters, they were without prejudice to the defendants, because, under the undisputed evidence and the law applicable thereto, the court might properly have directed a verdict of guilty. In determining what constitutes resistance to the execution of the ordinance, the conduct of the defendants must be viewed in connection with the attending conditions and circumstances. The officers had to deal not only with the defendants but with a more or less excited crowd of several hundred people, most of whom were in sympathy with the defendants, and in respect to the holding of the meeting were under their absolute control. It was the crowd incited by the defendants that finally overcame the efforts of the officers to prevent the meeting. King and one of the other defendants were ejected from the park by two of the officers. King claimed that in doing so the officer tore his coat. He got up on a barrel near the fence and addressed the crowd for 15 or 20 minutes. He showed his torn coat. He attacked the mayor, and said that the people had a right to use the park, that it was a public place. He said that the mayor was not doing his duty, that he had a notion to appoint himself mayor and let the people into the park, and that if the mayor did not come and open it he, King, had a right to do so. The defendant George Garner testified: “When King announced he would make himself mayor — declare himself mayor — words to that effect, it was a little loud; he stated the mayor had overstepped the mark, and he said, T have a notion to appoint myself as mayor and order the people to go in the park, go right in the park and we will hold the meeting.’ ” Other witnesses for the defendants testified as follows: “I saw King shortly after that standing up on something raised, talking to the people; the first thing I heard Mr. King say, he held up his right arm, and he had his coat sleeve nearly torn off. It was held a little at the top, and he was talking about the injustice of the officers. * * * I have never heard anyone that could stir up a crowd with regard to religion like King; he is the best talker I ever heard. He enthused me with his talk. I believed what he said and that was my spirit of mind when I went to the park on Sunday. I believed when I went to the park that I had a perfect right in the park on Sunday. Mr. King stood on a barrel and talked to the crowd fifteen or twenty minutes, and he told the people that it was a public place and they had a right to enter and they did enter the park. * * * I heard most of the talk King gave for fifteen minutes in front of the park; I might have heard all but I didn’t pay attention to all. * * * “Q. You heard him say it was a public park, and he kept motioning to the crowd to go on in, and the crowd went on in when he motioned to them? “A. Some of them did. There was a crowd in the park before King got through talking; about half the crowd, two hundred, was on the outside and that crowd went through after he got through talking.” Defendant George Garner also testified that he and the other defendants went to the park with a “fixed determination” to hold the meeting notwithstanding any opposition from the officers. He said: “When we were evicted from the park we told them that we were going to have that meeting. The officers, including Campbell (the chief), were in uniform and he told us he was a police officer. I have had quite an experience with police officers and at that time I intended to hold that meeting after he told us not to. * * * We held the meeting. We intended to do first what we did, but not with any violence.” It is not necessary to make further reference to testimony given in behalf of the defendants. That which we have referred to shows that, knowing they had been forbidden to use the park, the defendants went there with a fixed determination to hold the meeting. They found the park closed. Two of them gained entrance, but were ejected by the police. They were warned by the police officers to keep out. Instead of yielding to the law they persuaded their followers, who were present in large numbers, to enter and take possession of the park. What they did is undisputed, but their contention seems to be that they are not guilty of resisting the execution of the ordinance, because they did not resort to physical violence. To constitute an offense under this statute, it was not necessary that they should kick and fight and bite their way into the park. Their conduct under the circumstances was just as effective in resisting the officers as though they had used physical force. If all of the testimony except that given by the defendants and their witnesses had been eliminated from the record, the jury would have been justified in finding them guilty. In view of this fact, we shall not spend any time in discussing technical objections to the proceedings of the trial. In the verdict of guilty there was no miscarriage of justice. The judgment of conviction is affirmed. The court will proceed to sentence. Bird, c. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.	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Sharpe, J. On May 9, 1922, John E. Young, Jr., and Ruie J. Young, his wife, deeded a lot which they owned in Detroit to the defendant Leach, and at the same time Leach entered into a contract to sell the lot to them for the sum of $15,750, of which sum $4,000 was acknowledged to be paid. Leach also executed a contract wherein he agreed to build on the lot a two-family flat, costing $11,750. On the day Leach received this deed, he conveyed the lot to the defendant Davie, who assumed the vendor’s obligation under the land contract and also Leach’s obligation under the building contract. On July 29, 1922, Davie mortgaged the premises to the defendant Society for Savings for $7,000. On August 7, 1922, he executed a second mortgage on the premises to the defendants Niles and Peters for $3,000. On June 14, 1922, he executed a quitclaim deed of the premises to the defendant Jackson. In it appeared: “This conveyance is made for security only, to-wit: The payment of the account of Davie & Schrot, to B. H. Jackson.” It was recorded as a mortgage on August 18, 1922. The plaintiff and the other defendants furnished materials which were used in the building, and on April 11, 1923, the plaintiff began this suit to foreclose his lien and all of the defendants were made parties thereto. The court adjusted the lien and mortgage claims in a manner of which no complaint is made except that of defendant Jackson, which was disallowed. He appeals from the decree entered. The ledger sheets of Jackson’s account with Davie appeared in the record. At the time the deed was given (June 14, 1922) Davie was indebted to Jackson in a sum in excess of $5,000. Much material was furnished thereafter and many payments made on the account. The balance due on February 7, 1923, was $3,852.31. For this amount Jackson claims a lien under his deed. We are impressed that he is entitled thereto unless it be found that the debt secured by the deed was extinguished by the payments thereafter made. These payments exceeded the amount of this indebtedness. Jackson made no change in the manner in which the account with Davie was kept after the deed was given. It ran as an open account with debits and credits until February 7, 1923. Davie gave no direction as to how the credits should be applied. Neither did Jackson apply them to any particular items of the indebtedness. Statements were presented to Davie from time to time showing the dates when the credits were given. No claim of right to apply such payment on the unsecured indebtedness was made until the trial of the cause. The lav/ relating to the application of payments is well settled in this State. The debtor may direct the application before or at the time the payment is made. If he does not, the creditor may apply it as he pleases, either at the time the payment is made or afterwards, if before any controversy arises concerning it. In the absence of direction on the part of the debtor or application by the creditor, if the credit merely appears in the general account and there be no evidence of an understanding to the contrary, the credit will be applied to the debits in the order of time in which the debits occur. In People, for use of C. H. Little Co., v. Grant, 139 Mich. 26, 28, it was said: “There remains the question as to the effect of entering the credit for payments in a general account and rendering a statement to the-debtor showing such application. It seems that the mere entry of a credit to a particular account is not a conclusive application of the payment in the absence of notice to the debtor. Simson v. Ingham, 2 Barn. & C. 65. But when such credit is made, and an account rendered to the debtor showing such application, it is too late to make a new election. So it is held in numerous cases that, where a credit is entered to a general account, and an account thereof rendered to the debtor, this is an election to apply the payment to the extinguishment of items antecedently due in the order of time in which they stand in the account.” In that case and in Grosser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (67 Am. St. Rep. 389), and in R. L. Polk Printing Co. v. Smedley, 155 Mich. 249 (in which the same rule was applied), secured claims were involved. In Van Sceiver v. King, 176 Mich. 605, 608, it was said: “No application of the payment having been made by the defendant, and none established by the complainant, the court will apply it as justice and equity may require.” But in that case it appeared from the receipt given for the payment that the creditor might apply it in either of two ways as he might elect. The entry of the credits in the general account and the rendition of statements containing them, we think, must be treated as an application to the debits in the order of time in which the debits occur. It follows that the indebtedness to Jackson which the deed was given to secure was paid at the time his claim was presented to the court. The decree is affirmed, with costs to appellee. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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Sharpe, J. In 1908, William H. Sanborn, William T. Hoey and Frederick H. Reibenack were the owners of a considerable tract of land in Alpena and adjoining counties and conducted lumbering operations thereon. The title to the lands was in Sanborn. At the same time the defendant Gustin owned a still larger tract in the' same counties. Under agreement between the parties, Gustin transferred his lands to Sanborn as trustee. The lands were to be lumbered and sold on joint account and the net proceeds divided. Soon after this agreement was entered into, the plaintiff corporation was organized, the three parties above named holding equal shares of stock therein, and the title to all the lands, including those conveyed by Gustin, lodged in it. Lumbering was conducted and sales made by the plaintiff until 1911, when Beibenack bought the stock of Sanborn and Hoey and transferred a share to two other persons in order that the corporation might continue to function. Operations were continued until 1913, when the defendant Gustin, after expressing some dissatisfaction concerning the result of the operations, offered to sell his lands to plaintiff for $16,000 or purchase plaintiff’s at the same price. Gustin’s offer to purchase was accepted. It was arranged that as Gustin disposed of any lands or timber the proceeds should be credited on the $16,000. In December, 1918, approximately 9,600 acres were deeded to Gustin. In 1920, Gustin claimed that he had not only paid this amount in full but had overpaid it, whereupon plaintiff filed its bill of complaint herein for an accounting as to the amount due. Gustin answered, consenting to the accounting, and by cross-bill averred that moneys were due him thereon, and prayed for delivery of a deed of the lands- and for decree for payment of the amount found to be due him. In January, 1922, after the cause was at issue, the defendant Besser secured from the plaintiff a warranty deed of said lands for an expressed consideration of $20,000, and placed the same on record. Gustin thereupon by permission of the court filed an amended answer and cross-bill, in which Besser was made a party defendant and required by an order of the court to answer. In it he prayed that Besser’s deed be canceled as a cloud on his title. Besser answered, and by cross-bill asked that the title be quieted in him. He also averred that Gustin had conveyed some of said lands to the Beaver Lake Club, a corporation, and asked that it be made a party defendant and its deed canceled. The club was made a party defendant and answered, denying that Besser was entitled to any relief as to it. The trial court, by decree filed on August 18, 1924, ordered plaintiff to convey the lands to Gustin and granted a decree in his favor against plaintiff for an overpayment in the sum of $3,592.96. He canceled the Besser deed, but ordered Gustin to pay Besser $50, which he had paid to remove an apparent cloud', upon the title to one parcel of said land. The defendant Besser appeals. 1. Besser’s Title. It is insisted that Mr. Besser was a good-faith purchaser, without notice, actual or constructive, of the equitable claim of Mr. Gustin. The trial court in his opinion, after reviewing the proofs at some length, said: “I am of the opinion that Mr. Besser, when he obtained his deed in January, 1922, had such notice and knowledge of the claims of Mr. Gustin, and his grantee and lessee, the Beaver Lake Club, as would apprise an ordinarily prudent and honest man that he ought to inquire further before purchasing the lands involved, as to the extent, nature and foundation of such claim. * * * “He bought the lands in great haste for an inadequate consideration, and, in my judgment, was not a bona fide purchaser of the same.” A careful consideration of the entire record satisfies us that he reached the right conclusion. Mr. Besser had long been a resident of Alpena county. He had for many years dealt extensively in timber and timber lands in that and the adjoining counties, and was able to estimate the quantity of timber on land and to fix its value and that of the land on which it was standing. He visited the lands in question, known as the Beaver Creek lands, with a view to their purchase in the year 1912 and again in 1917 and 1920. He testified, relative to his purchase, that he casually met Reibenack in a store in Alpena and asked him if his land in 29-5 was still for sale, and, on being informed that it was, asked the best price he would take for it; that Reibenack went to the back part of the store and returned, handing him a paper on which was written “$20,000;” that he said the price was ■too much and that Reibenack “finally got down to a '$6,000 basis and I was to pay the taxes;” that Reibenack furnished him a plat of the lands and he went to the office of an abstractor and requested him ;to look up the title; that a little later the same day he went back and was told that the title was in the plaintiff except as to a few descriptions, the title to which was somewhat doubtful; that he then saw Frederick Polzin about getting the money; that they went to Robert Polzin’s store, where he got $2,000 in currency and a check for $4,000; that Reibenack had the deed prepared and executed by himself as president and Frederick C. Burnett as secretary of plaintiff, and he paid him the $6,000; that when the deed was prepared there was talk about the revenue stamps which should be placed on it, and that Reibenack said there were some taxes and “Oh, well, make it $20,000,” and that the stamps required for that consideration were placed on it and paid for by Reibenack; that he then went to the county treasurer’s office and paid the taxes needed to entitle the deed to record ($1,320.91) and left it for record. All this occurred on the same day. An entry was made on the books of the plaintiff which stated that the purchase price was $20,000. The deed from Gustin to the Beaver Lake Club of a part of these lands was then on record. Reibenack left Alpena the next day and had not been heard from at the time of the trial. Mr. Burnett owned one share of stock in the plaintiff company, and acted as its secretary. He had kept its books for many years. He knew of Gustin’s offer to purchase for $16,000 and the company’s acceptance of it. He made out the account, a copy of which was attached to the bill of complaint, and signed and verified the bill filed as secretary and treasurer of the plaintiff. That the execution of the deed to Besser, if intended to cut off the rights of Gustin, was a gross fraud on the part of the officers of the company cannot be doubted. Burnett had no financial interest in the company. It is inconceivable that he would have executed this deed unless satisfied that Besser had full knowledge that the title of the company conveyed to him thereby was subject to the equitable claim of Gustin. Beaver Lake is a fine body of water. Mr. Besser knew that several of the descriptions of the lands in question bordered on it. A dam was built at the outlet in the fall of 1920. Mr. Gustin was at that time one of the county road commissioners of the county, and at a meeting of the board of supervisors in May, 1921, the charge was made that work had been done on the dam by employees of the commissioners. An investigating committee was appointed and a hearing had. In the first column of the first page of the Alpena News published on May 26, 1921, under the headings “Hearing on Beaver Lake dam charge. Road committee of supervisors ends task,” appeared a resumé of the hearing, in which the Beaver Lake dam and Beaver Lake Club were several times referred to. It is but fair to say that the commissioners were exonerated in the report made. This paper also had a column headed “Beaver Lake Items,” in which the activities of the club and the guests en tertained at it in the fall of 1921 appeared almost daily. In 1916 Gustin concluded to make a game preserve of a part of the lands around the lake. He employed a farmer named Allen, who lived on an adjoining section, to build a fence partially around them, and this was done. About seven miles of barbed wire was placed on posts set for that purpose. Much of the small timber was brushed out where the fence was built. Allen testified that he tacked up notices printed on cloth on trees and posts along this fence and that new notices were put up every fall thereafter. A number of other witnesses testified concerning this fence and the notices posted near it. A witness named Goodrich, who was lumbering and looking after the lands for Gustin, testified that in December, 1919, he met Besser on the lands, talked with him about his lumbering for Gustin, and told him that Gustin was organizing a club and was going to build a clubhouse. He helped build the clubhouse, about 35 men being employed. A telephone line was constructed in 1921 connecting it with the Turtle Lake Club. He' also testified that the lands were known and spoken of as the Gustin lands after 1918. Mr. Gustin testified that in September, 1921, he had a talk with Mr. Besser in which he told him that he had recently organized the Beaver Lake Club and that they were then building the clubhouse at the lake. These conversations are, however, denied. It also appears that there was repeated mention in the Alpena News of the activities of Gustin and the Beaver Lake Club, and a notice was at one time published in it by Gustin forbidding trespasses on these lands. Besser was a subscriber to this paper. Alpena is not a large city, and it seems incredible that a man engaged as was Mr. Besser did not read what was so published and had no knowledge of these activities or of the organization of this club or its holdings when there was so much publicity concerning them. In September, 1921, Gustin deeded a part of the lake frontage to the Beaver Lake Club and leased it a considerable acreage for hunting purposes for a term of 20 years. He had theretofore entertained friends at hunting parties on the land. The club, before getting its deed, had begun the erection of a clubhouse and completed it in the fall of 1921 at a cost of about $25,000. It stood on an elevation near the lake, and could be seen for miles around. There is considerable proof that the merchantable timber standing on these lands was worth more than $40,000 at the time of the hearing, and a part of it is good farming land worth at least $10 per acre. When to this is added the value of the clubhouse ($25,000), it will be seen how inadequate was the price paid by Mr. Besser as the consideration for his deed. In 1918 and 1919 Gustin conducted quite extensive lumbering operations on the lands, some of the lumber remaining in piles for more than a year. Robert H. Rayburn, long a resident of Alpena county and an owner of lands adjoining those in dispute, called as a witness by Besser, testified “It was generally known up there in that region that Gustin had a club and had men up there from Chicago and other places.” He at one time leased to Gustin the hunting and fishing privileges on a lot adjoining that deeded to the club. He further testified: “Gustin claimed to own those lands but the title showed in the American Cedar & Lumber Company.” It is elementary that as a general rule possession of real estate is constructive notice of title in the possessor. “Constructive notice by possession is equal to con structive notice by record.” Fraser v. Fleming, 190 Mich. 238, 244. Notice in such cases is a legal deduction from the fact of possession. Delosh v. Delosh, 171 Mich. 175. The possession of wild, uncultivated land may not be evidenced in the same way as improved land. There must be such a use or occupancy as would indicate to a reasonably prudent person visiting the land that the occupant or possessor claimed rights therein. “Possession may be shown by any use of the land to which it is adapted, and which is calculated to apprise the world that the property is occupied. Tate v. Pensacola, etc., Development Co., 37 Fla. 439 (20 South. 542, 53 Am. St. Rep. 251).” 39 Cyc. p. 1750, note. It is urged that Gustin had no right of possession and, if he took possession, was in fact a trespasser. It is apparent that the agreement entered into between the plaintiff and Gustin, on which the bill in this case for an accounting was predicated, contemplated that Gustin should have possession and might sell or lumber the lands, the proceeds, however, to be applied on his indebtedness to the plaintiff. It admits in its bill that the relation then existing between them was that of a vendor and vendee under a land contract, and it asked the court for a decree that it be authorized to sell so much of said lands as might be necessary to satisfy the amount found to be due it on such accounting. In the light of these facts, the plaintiff could not well claim that Gustin’s possession was that of a trespasser. We are impressed that Besser knew that Gustin had some rights in these lands, but was of the opinion, as was apparently Mr. Rayburn, that as there was nothing of record to show it the plaintiff might convey the title freed therefrom. “A person is chargeable with constructive notice where, having the means of knowledge, he does not use them: Mayor, etc., v. Williams, 6 Md. 235. If he has knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries, and does not make, but on the contrary studiously avoids making such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would readily have ascertained.” Converse v. Blumrich, 14 Mich. 108, 120 (90 Am. Dec. 230). 2. The Accounting. As Besser by his deed secured all the rights of the plaintiff in the lands described in his deed, he is entitled by his appeal to a consideration of the conclusion reached by the trial court on the accounting. Should any money be due from Gustin to the plaintiff, Besser would be entitled to it by virtue of the deed from plaintiff to him, which is valid as to the parties thereto. The two items in dispute are, first, the allowance Gustin should receive on account of cedar cut on a part of the lands included in his purchase, and the matter of interest. As to the former, it appears that one Brilinski cut this cedar under an arrangement with the plaintiff whereby it received therefor $5,132.65 after the payment of all expense.- Gustin testified that Reibenack told him the company had sold the cedar to Brilinski for $1,000, and that it was years after before he discovered that it had received the sum above stated. We have read the testimony bearing on this item with care, and are satisfied that the plaintiff should account to Gustin for the stumpage value received by it. There is much force in the claim that Gustin should be charged with interest on the sums unpaid from time to time. The letter containing his offer and its acceptance by plaintiff say nothing about interest. He testified that it was agreed that none should be charged. The interest charges as they appear on plaintiff’s books amount to $2,159.58. If this be charged to Gustin, it will in no way affect Mr. Besser as there would still be a balance due Gustin from the plaintiff. As Besser, who alone appeals, is not personally interested in the decree so far as it provides •for payment by plaintiff to Gustin, and as Reibenack did not appear to defend the interests of his company, we are not disposed to interfere with the conclusion reached by the trial court that the interest charges should be disallowed. 3. Taxes Paid by Besser. It is undisputed that after his purchase Besser paid the taxes delinquent on the lands, amounting to $1,320.91. The trial court held that this sum should be treated as a payment by the plaintiff and that it should have the right to deduct it from the sum due by it to Gustin on the accounting. Besser’s counsel insist that he was entitled to a personal decree against Gustin for this amount. In this we think they are right. There was no obligation on the part of plaintiff to pay these taxes. They had become a'lien on the lands after the agreement was entered into under which Gustin took them over from plaintiff. ■ They were for Gustin to pay, and he, having brought Besser into a court of equity, should be required to do equity and repay to Besser the amount so paid which has inured to his benefit. 4. The Spratt-Herrick Lot. After Besser’s purchase he procured abstracts of title to the lands described in his deed. He discovered that the record title to lot 3 of section 11, town 29 north, range 5 east, was defective. He had in the meantime visited the clubhouse and found that it was located on this lot. Thomas G. Spratt, late of. Alpena, obtained a warranty deed of this lot in 1888. He at that time was engaged with Nicholas J. Foley in buying and lumbering timber lands under the firm name of Spratt & Foley. Foley testified that the title to these lands was usually taken in Spratt’s name. Spratt died in 1895. His will was admitted to probate in Alpena county. His property was bequeathed in equal shares to his wife, Ruth M. Spratt, and his daughter Bernice, now Bernice Spratt Herrick. Mrs. Spratt was named as sole executrix. On December 27, 1888, a deed of this lot, purporting to be made by Foley and his wife and Ruth M. Spratt to John Gibson, was recorded in the office of the register of deeds of Alpena county. It recites that the lands were “Spratt and Foley lands.” The record does not show that it was signed by Mrs. Spratt, although the certificate of the notary attests that it was acknowledged by her. While Mr. Foley could not recall the transaction, he testified that the lands belonged to the partnership and that Mrs. Spratt received one-half of the consideration paid therefor. One of the witnesses to the deed- was Louise M. Oakes. She testified that at the time it was executed she was living at the Spratt home and was satisfied that she had witnessed it there. She had had much experience as a stenographer and bookkeeper, and in answer to a question whether she would have signed it as a witness unless Mrs. Spratt had signed it answered: “I certainly would not, with my experience, have signed it unless her name had been there, as a witness, and I didn’t know the other party.” The Gibson title passed by mesne conveyances to the plaintiff and was carried on its books in the “San-born and Gustin Land Account.” On discovering the condition of the record title to this lot, Besser, on February 11, 1922, secured a deed from Bernice Spratt Herrick, paying her $50 therefor. In its bill of complaint the plaintiff alleges that Gus-tin offered and agreed in writing to take over all the lands and; timber owned jointly by them and pay plaintiff $16,000 in full settlement of all accounts between them, and that plaintiff accepted this offer. From the date of such acceptance the relation of vendor and purchaser existed between them. The plaintiff was thereby obligated to convey the lands therein referred to on payment ‘to it of the sum agreed upon. This sum had been fully paid at the time the bill was filed, and Gustin was then in equity entitled to a deed of the lands. Mr. Besser steps in and purchases the lands from the plaintiff. Under our holding he acquired title subject to the equitable rights of Gustin in the land. The plaintiff had color of title to the lot in question. It conveyed it to Besser by warranty deed. Besser thereafter stood in the shoes of plaintiff, and assumed the obligation to perform the contract which plaintiff had entered into with Gustin. The court in its decree set aside the deed from the plaintiff to Besser. While it makes no difference to Gustin from whom he obtains title, yet the deed from plaintiff to Besser is a valid one and conveyed to him all the interest the plaintiff then had in the lands described in it, but subject to Gustin’s rights , under his contract. After executing such deed, the plaintiff had nothing left to convey. In Vos v. Dykema, 26 Mich. 399, 401, it was said: “It is said, however, that the deed is not effectual as a transfer of the contract, because, being with covenants, it is inconsistent with its terms that any such contract was in existence; and it cannot be held that the vendor intended to assign the contract by a deed which, so far from alluding to it, covenants that the title is unincumbered, and thereby in effect declares that there is no such contract. But if the contract existed in fact, it is difficult to perceive how the vendor could possibly assert any rights under it, after giving an absolute conveyance. He assigns all his right in the land; and that assignment is necessarily subject to the right of Dykema to acquire it on complying with the terms of the existing contract. Strictly, it is not so much a transfer of the contract, as a transfer of the vendor’s title, subject to the contract; and would require express and positive provisions for the purpose, to save to the vendor any rights in the contract, on the giving of such a deed.” In Converse v. Blumrich, supra, it was held (syllabus) : “Buying the title or rights of the vendors in such contract, with knowledge of equities in their vendees, the purchaser becomes liable to the same extent, and in the same manner, as the persons from whom he bought.” This holding was said in Edwards v. Clark, 83 Mich. 246, to establish the right of a grantee to collect the rent due from a tenant without assignment of the lease or attornment on the part of the tenant. We think the decree should have ordered Besser to convey to Gustin in performance of that contract* and it may be amended to do so. What, then, must Besser convey? Should he be simply ordered to convey the interest he acquired under his deed from the plaintiff or the entire interest which he had at the time the decree was signed? Had the plaintiff perfected the record title to this lot prior to its conveyance to Besser, it seems clear that Gustin would obtain the benefit thereof. 39 Cyc. p. 1616. We are impressed that the same reasoning applies to the deed which Besser obtained from Mrs. Herrick. If obligated to convey this lot to Gustin, he must convey all the title he has at the time the conveyance becomes effective. What has been said on this subject applies with equal force to other lands for which he obtained deeds perfecting the titles thereto. 5. Conflicting Equities. It is urged that Gustin, by his failure to secure and record proper evidence of his interest in these lands, made it possible for Reibenack to defraud Besser. This claim is based on the assumption that Besser purchased in good faith and without notice of Gustin’s interest in the lands. We are unable to agree with counsel that he did so. 6. Specific Taxes. It does not appear that the specific tax provided for in section 4268 et seq., 1 Comp. Laws 1915, had been paid upon the contract between the plaintiff and Gustin, and counsel for Besser insist that it is unenforceable in court for that reason. This question was not raised on the trial or considered by the trial court. The contract was offered in evidence by the plaintiff. The proof relating thereto was received without objection. Besser, when he obtained his deed, assumed the obligation of the vendor therein. He may not at this time rely on such nonpayment as a defense. The decree entered will be modified to conform to this opinion, and, as so modified, affirmed. The question of the costs in this court is somewhat 'troublesome. The only relief obtained by Besser on '.this appeal is in the allowance to him of a personal decree against Gustin for the amount paid by him in .taxes ($1,320.91). It would have required but a comparatively small record to have presented this question to this court. The printed record contains 880 pages. In our opinion equity requires us to allow to him as a part of the taxable costs to which we find he is entitled on this appeal but one-third of the cost of procuring the transcript and printing the record. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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Sharpe, J. On July 31, 1922, plaintiff entered into a written contract with defendants Zacks and Lerner (hereafter called the defendants) wherein it agreed to furnish the material for and erect the interior tile partitions in a building then being constructed in Hamtramck, according to the plans and specifications which had been prepared therefor. The defendants, who were subcontractors under the defendant Ross, the general contractor, agreed to pay plaintiff for such material and work the sum of $910, payable as follows: “On or before the tenth (10) day of each calendar month eighty-five (85%) per cent, of the value of all materials delivered upon the premises of the purchaser by the contractor, and of work performed by the contractor, during the next preceding calendar month. Final payment to be made within thirty (30) days after the completion of said tile partitions by the contractor. If the contractor is unable to complete all work embodied in this contract due to delays by the purchaser or by other trades or for any cause beyond the control of the contractor, full payment shall be-made to the contractor on the last day of the month for all materials delivered and for all work performed during previous months.” On the same day another written contract was entered into by the same parties wherein the plaintiff agreed to furnish the materials and erect the “tile roof deck” over the building according to such plans and specifications, for which it was to receive from the defendants the sum of $3,035, payable in the manner above provided for the tile partitions. In August and September, 1922, the material necessary for the construction of the partitions and roof was shipped by plaintiff to Detroit and conveyed by its agents to the building. Soon after, plaintiff’s salesman, accompanied by its construction superintendent, visited the building and had a conversation with the defendant Zacks about the work. In answer to a later inquiry over the telephone, Zacks said that he was not being paid by Ross and that plaintiff should not begin until notified to do so. On December 4th, Zacks notified plaintiff’s agent that defendants intended to file a lien for the material furnished and work done by them and that plaintiff should not proceed with its work. The defendants soon after filed such lien, and included in it the cost of the partition and roofing tile which plaintiff had placed in the building. It was stipulated by counsel that the profit which plaintiff would have made, had it been permitted to perform its contracts, would have been $882.50. Plaintiff brought this action to recover the cost of the material furnished by it and its loss of profit, and recovered judgment for $2,763.44, which defendants here review by writ of error. Defendants’ counsel insisted upon the trial and urge here that the court was in error in not holding that it was the duty of the plaintiff, when advised that it could not proceed with its work under the contracts, to minimize its loss by retaking possession of the tile and selling them at the best price obtainable therefor, and in refusing to admit proof relating thereto. Plaintiff furnished this material under its contracts. The time of payment therefor was agreed upon, and had elapsed before the date when plaintiff’s agent was told not to proceed with the work. The cost of the material was thus segregated from the labor cost. Defendants included the amount in the lien filed by them, and had a suit pending to foreclose such lien at the time of the trial. The trial court was clearly right. The defendants might have disposed of the tile, but chose to obtain the cost thereof in thel proceedings to enforce their lien. Plaintiff was entitled to recover its loss of profits. Federal Bond & Mortgage Co. v. Burstein, 222 Mich. 88, 92, and cases cited. The judgment is affirmed. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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Clark, J. The Grand Rapids & Indiana Railroad Company, a railroad corporation, in 1864, by virtue of an act of congress granting certain public lands in aid of the construction of certain railroads, obtained grant of government lot 13, in section 35, T. 23 N., R. 8 W., Missaukee county, recorded April 22, 1901. Through mesne conveyances from the grantee the premises are now owned by the plaintiff. In 1838 the township itself was surveyed by the government, and the subdivision thereof in 1852, and the plat of the original survey was filed with the general land office. Meander lines were run around Goose lake, a fresh water pond or lake having an area of 133 acres. Lot 13 is bounded on the north and east by the lake. The following part of the plat of the township (p. 657) will show the lake as meandered and the lot. The other lots about the lake were conveyed in 1871. It will be observed from the map that as meandered lot 13 included a tongue or peninsula of land projecting into the lake in a northeasterly direction, the map and survey show no land or islands beyond, nothing to indicate any reservation by the government. The fact is that the meander line was carried across the peninsula, and that the plat shows but a small part of it. The following map (p. 658) shows the situation in fact. This map shows a cut across the peninsula. The meander line follows it. The trial judge found as a fact that the cut was artificial, not natural. We do not disturb the finding. The cut is 36 rods north of the base of the peninsula, about 2 feet deep, about 2 to 6 feet wide at bottom and about 10 to 14 feet at top. Whether it contains water and how much depend on the varying level of the lake. The peninsula is land in its entirety, high land, averaging about 12 feet above the lake level, at one point nearly 30 feet. Lot 13 within its boundaries according to the plat contains 39 acres. The portion of the peninsula north of and beyond the meander line contains about 15 acres. Prior to 1888 one Hemphill made application to the general land office to have the land north of the cut surveyed as an island. On February 27, 1888, the application' was disallowed, we quote: “The facts appear to be that the land in question is the end of a peninsula extending into the lake and existing, undoubtedly, at the time of the original survey in substantially its present condition, except as its surface may have been altered by the hand of man.' The plat of the survey does not show any island; according to the plat, the south and west boundary lines of the fractional lot (lot 13) were surveyed lines, and north and east lines the waters of the lake. The meander line, by which, on the plat, the east and north sides of the fractional lot were roughly indicated, appears not to have accurately followed the course of the shore, but to have passed across the neck of the peninsula so as not to have included in the computation of the contents of the fractional lot all of the land upon the peninsula. It would appear that if the meander line were to be traced upon the land it would leave outside of it the projecting end of the peninsula, which is now called an island by the applicant for the survey. * * * “When, therefore, a patent was given of fractional lot 13, reference for its boundaries was impliedly made to the official plat and the statutes, and these showed the natural landmark of the water on the north and east sides as the limits of the lot. This natural landmark is not to be disregarded because the meander line was inaccurate. The mistake of the surveyor, even though it were willfully or recklessly made, in failing to accurately trace the natural landmark and to embrace all the true contents of the lot in the computation of its area, is not a mistake which altered the surveyed boundaries. Its effect was, it is true, to deprive the government of the full price which might have been demanded for the land by diminishing the acreage, reported below the true quantity. This is an effect often resulting from inaccurate meander lines in the surveys, but it cannot be allowed that the purchaser from the United States according to the plat, much less those who have taken title through mesne conveyances, shall be deprived of the area which the boundaries of the lot as shown by the plat entitle them to have. The rule is familiar that courses, distances and quantities, as points of identification of a grant must yield to the natural or fixed landmarks upon the grant (Shufeldt v. Spaulding, 37 Wis. 662). “Upon the facts as presented, therefore, the lands sought to be surveyed cannot be regarded as part of the public remaining unsurveyed, and the application for survey is denied. “Very respectfully, “S. M. Stockslager, “Acting Commissioner.” In November, 1908, James Boyer made another like application. A survey, August 18, 1909, was made, entitled “Survey of- Goose Island,” etc. Upon the filing of the survey Boyer made application under section 2289, Revised Statutes of the United States, to enter lots 11 and 15 purporting to comprise, as so surveyed, Goose Island. A protest was filed by one Thorpe then the owner of lot 13. But on April 24, 1914, a patent was issued to Boyer of the land in the peninsula, north of the cut, as government lots 11 and 15. Patent was recorded on January 7, 1915. Defendant is grantee of Boyer and wife. The bill was filed to quiet title of plaintiff in and to the peninsula. Plaintiff had decree. Defendant has appealed. 1. Did title to the peninsula pass with the original conveyance of government lot 13? We think it did. The meander line cut off most of the peninsula leaving it outside the meander. The survey treated it as water, nonexistent as land, but as a part of the lake. By the survey lot 13 is bounded on at least two sides by the lake, not by the meander. In Mitchell v. Smale, 140 U. S. 406 (11 Sup. Ct. 819, 840), it was said, citing eases: “It has been decided again and again that the meander line is not a boundary, but that the body of water whose margin is meandered is the true boundary.” And we quote: “It is the policy of the government not to assert title to such tracts, and to hold that the title passes to the abutting owners as though the land were included within the meander line.” Schmitz v. Klee, 108 Wash. 9 (173 Pac. 1026); citing decisions of the United States Supreme Court. In the Mitchell Case, plaintiff owned a parcel of land for which patent had been issued containing, according to the survey, nearly four acres, and on the plat of the survey it was shown as bordering on and bounded by the lake. But there, as here, the meander line had been carried across a peninsula extending from said parcel into the lake 220 rods, of varying width, about 28 rods, of varying elevation, covered with trees “three feet in diameter and under.” After review of authorities, including Hardin v. Jordan, 140 U. S. 371 (11 Sup. Ct. 808, 838), it was held that the patent of the parcel passed title to the peninsula. To the case at bar Schmitz v. Klee, supra, is closely parallel in facts and in contentions of the parties, and there the Mitchell Case was followed. Forsyth v. Smale, 7 Bis. (U. S.) 201, presented a case of a tongue of land projecting beyond the meander line. The water and not the meander line was held to be the boundary. See, also, Railroad Co. v. Schurmeir, 7 Wall. (U. S.) 272; Hardin v. Jordan, supra; Butler v. Railroad Co., 85 Mich. 246; Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87 (15 Sup. Ct. 991); Sewers v. Hacklander, 219 Mich. 143. And we quote again from the Mitchell Case: “Our general views with regard to the effect of" patents granted for lands around the margin of a nonnavigable lake, and shown by the plat referred to therein to bind on the lake, were expressed in the preceding case of Hardin v. Jordan, and need not be repeated here. We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more or less than taking from the first grantee a most valuable, and often the most valuable part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation which ought not to be created or sanctioned. The pretence for making such surveys, arising from the fact that strips and tongues of land are found to project into the water beyond the meander line run for the purpose of getting its general contour, and of measuring the quantity to be paid for, will always exist, since such irregular projections do always, or in most cases, exist.” And syllabus of Doolan v. Carr, 125 U. S. 618 (8 Sup. Ct. 1228) : “Want of power in an officer of the land office to issue a land patent may be shown in an action at law_ by extrinsic evidence, although the patent may be issued with all the forms of law required for a patent of public land.” Cases in which the survey and plat indicate a reservation beyond the meander line by such words as “flag marsh” (Niles v. Cedar Point Club, 175 U. S. 300 [20 Sup. Ct. 124]), or “sunk lands” (Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U. S. 186 [34 Sup. Ct. 297]), are, we think, clearly distinguishable. 2. Relative to the thought that the survey may have been mistaken or wrong, we quote from Hardin v. Jordan, supra: “With the title passes away all authority or control of the executive department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel or annul the instrument which he has made and delivered. If fraud, mistake, error or wrong has been done, the courts of justice present the only remedy. These courts aré as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course.” 3. Answering the suggestion that plaintiff suffers prejudice by the failure of his grantor to appeal from the Unfavorable action toward his said protest, we quote again from Hardin v. Jordan, supra: “If the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale or other disposition, or they had been reserved from sale, the department had no jurisdiction to transfer the lands, and their attempted conveyance 'by patent is inoperative and void. So that, if the lands had been ‘previously disposed of,’ the department has no jurisdiction over them; and the question whether they have, or have not, been previously disposed of is a judicial question, and not determinable by the executive department, except for the purpose of governing its own conduct in the administration of its functions.” The lands having been, as we hold, previously disposed of, plaintiff suffers no prejudice by the decision and action of the department made and taken without jurisdiction. 4. The defense of adverse possession, urged in the trial court, is withdrawn in the brief. That the relief prayed should be denied because of laches, the statute of limitations, or because of a further claim of es-toppel, are questions the discussion of which would be without profit. The decree is affirmed, with costs to plaintiff. Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred.	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Snow, J. The plaintiff is a mutual fire insurance company reorganized under chapter four of part four of Act No. 256, Pub. Acts 1917, as amended by Act No. 407, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 9100 [264] et seq.). Section 13 thereof provides: “It shall be the duty of the incorporators of any company organized under, or subject to the provisions of, this chapter to prescribe in their articles of association, the liabilities of the members to be ratably assessed towards defraying the losses and expenses of such companies, and the mode and manner of collecting such assessments, and the members shall be liable to assessment for all liabilities of the company to the extent declared in the articles of association; and the liability of the persons insured in such companies and the members thereof, for the losses or expenses of such companies, shall not exceed the liabilities assumed by such persons when taking such insurance or by such members when joining such company, and in payment in full by such person or member of the amount assumed or agreed to be paid on taking such insurance, or on becoming a member of such company, the said persons so insured as aforesaid and the said members of such companies shall be released and absolved from any and all further liability, for such losses or expenses.” On April 11, 1922, the defendant made application for $5,900 of insurance upon a three-year term class three policy. The premium fee on class three policies was fixed at an amount which the company estimated would take care of all losses and expenses ap-portionable to policies of that class during the insured period, and in defendant’s case it amounted to $48.67, a membership of $1, and a policy fee of 50 cents, making a total of $50.17, which he paid in cash. The liability of the members was not prescribed in the articles of association, as required by the quoted section of the statute, but in the application for insurance it was provided that such application was subject to the “articles of association, by-laws, rules and regulations now in force, or that may hereafter be in force.” In May, 1922, and again in June, 1923, the company amended its articles of association to provide for the right to levy an assessment upon policies in class three, not to exceed the amount of one premium thereon, in the event that business in that class should not be sufficient to pay losses and provide a sufficient reserve. In July, 1923, pursuant to such amendments, an assessment was made on class three members for their pro rata share of losses, which had been very heavy. Defendant’s assessment amounted to $41.60 and, upon his refusal to pay the same, suit was commenced against him in justice’s court. From a judgment in his favor an appeal was taken to the circuit court, where, by direction of the court, a judgment was again rendered in defendant’s favor, and is here reviewed on writ of error. It is the contention of plaintiff company that the provision of the statute, requiring the liability of the members to be prescribed in its articles of association, is not mandatory, but directory only; that the omission from the articles was an oversight, a mere irregularity, and that the statute, containing a provision for the liability of members to be assessed for losses, expenses, and liabilities of the company, constituted a part of the contract between the parties, making it unnecessary to repeat its provisions in the articles of association; and, therefore, that while the liability of the defendant was not prescribed in the articles of association, such liability was not to be measured by the amount paid by defendant when he became insured, but that, because he had agreed in his application to become subject to any rule or regulation that might thereafter be put in force, his liability to the company could at any time be enlarged by an amendment to the articles of association, making provision therefor. If plaintiff’s contention is correct, the section of the statute above quoted, under which the company was organized, and a compliance with which should determine its right to exist and continue, must be held for naught. The purpose of this section of the law was to provide accessible means for the prospective member to ascertain the extent of his liability. He was not to be compelled to go to the law, which in any event he would have difficulty in finding or understanding, but it was made as easy as possible for him by requiring that it be set out in the articles of association, which were a part of his policy, so that he might read there what his liabilities were in return for the protection of insurance that was to be afforded him. If this provision of the statute, requiring the liabilities of members to be prescribed in the articles of association, was not a mandatory one, the evident purpose it was designed to accomplish could be easily defeated by a simple failure to comply with it, as was done in the instant case. How can the' claimed right of the plaintiff to levy an assessment against defendant at will, without sufficiently expressed authority in the articles of association so to do, be reconciled with the law which provides that the liability of persons insured “shall not exceed the liabilities assumed by such persons when taking such insurance or by such member when joining such. company?” There was nothing in the articles of association which might lead the defendant to expect that he couldi ever be called upon, during the three-year life of his policy, to meet some action of the company which would increase his liability to it beyond that which he had the right then to know he was undertaking. This court has never been called upon to determine the rights of mutual fire insurance companies organized under this statute to levy additional assessments on its members, but plaintiff hast called our attention to several life insurance cases, organized under Various other statutes, for authority that defendant was bound by amendment to the articles of association as to assessments or additional liabilities, because his application was subject to rules and regulations that might thereafter be in force. We have examined these cases and conclude that the most that plaintiff can claim for them is that where there was an agreement with the member, at the time he became such, to the effect that he would be bound by future rates and liabilities to be put in force and imposed from time to time as the company insuring deemed necessary, he was bound by such agreement and responsible for such increased liability imposed upon him thereunder. But no such provision was embodied in the articles of association in the instant case, and it was clearly the intent of the legislature to confine the members’ liability within the limits specified in such articles. We are not called upon to determine, and do not attempt to prescribe, what provision might be incorporated in the articles of association relative to liabilities of members, that would at once satisfy the statute, and still permit additional assessments, as was attempted in the instant case. It is sufficient here to say that the articles contained no such provision when defendant became a member of the company, and the attempted imposition of additional obligation against him was clearly void. Section 16 of the act under consideration provides in substance that it is the duty of the president and ' secretary of all mutual companies to levy an assessment sufficient to cover all. of their liabilities, and section 17 of the act provides a penalty for their wilful failure to do so. Plaintiff contends that these sections not only permit, but impose upon it the specific duty of doing just what was done in the instant case, notwithstanding the fact that no such provisions are contained in its articles of association, by-laws, rules or regulations; that these sections are inconsistent with section 13 above referred to. Authority is not given to the company to levy assessments upon members by these sections. Their intent and purpose is to place upon some officer of the company the duty to perform the necessary ministerial functions of making the levy of lawful assessments, so that just claims might not be defeated or delayed, We do not find these sections to be in any way inconsistent with section 13, or that they confer upon the company any right to levy an assessment upon the members that but for them would be illegal. Counsel for plaintiff places reliance upon Russell v. Berry, 51 Mich. 289, as authority for the right to levy the assessment against defendant. In that case this court holds that it was section 17 of the act under which the company was organized that gave it conclusive authority to levy assessments. Such section declares that the receiver “shall at once proceed to assess upon all members and persons insured in such company, such sums of money as will in the aggregate be sufficient to pay all the losses and liabilities of said company, together with the services and expenses of such receiver,” etc. The company was in the hands of a receiver and he was simply following his statutory duty in making the assessment and prosecuting for its collection. We are not dealing with a receivership or insolvency in the instant case, and no right to assess is claimed by virtue of any such provision of the law as controlled the Russell Case. And, too, it must be borne in mind that the law under which plaintiff is organized makes it mandatory to prescribe the limitation of liability in its articles of association. The Russell Case, therefore, is not here controlling. See Macklem v. Bacon, 57 Mich. 334. We have examined with care all questions suggested in the briefs of counsel, and conclude the case must be disposed of upon the effect that must be given the statute discussed. We agree with the trial court that this statute requires the company to set forth in its articles of association the full liability of the member, and that further than is there set forth liability cannot be imposed. As the articles of association, at the time defendant became a member, did not comply with the law, and as they utterly failed to confer the right to impose additional liabilities upon the defendant to those he assumed and paid, we are constrained to hold the assessment attempted against the defendant illegal and void. The judgment in favor of the defendant is therefore affirmed, with costs. Bird, C. J., and Sharpe, Steere, Fellows, Wiest. Clark, and McDonald, JJ., concurred.	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Campbell, J. This is a bill the object of which is to get rid of a foreclosure decree, and of the sale under it, and to open the case on its merits, and allow complainant to redeem. It is in effect a bill in the nature of a bill of review, filed without leave and without security, as required by rule 101, and filed after a long delay. The bill is not sworn to, and is not accompanied by any sworn showing, without which no leave could properly be granted. These would be sufficient reasons why it should not be .sustained, and why the court below should have dismissed it. But on the facts alleged it is not sustainable. It shows a mortgage executed in 1875, and foreclosed by Chancery proceedings in 1876, when a decree was made, which is now claimed to have been for $50 too much. That amount would not, as a separate grievance, be enough, to give chancery jurisdiction. It is claimed that this decree, although the parties all appeared, was taken without proper notice. But, as already stated, even this is not sworn to, and is not presumable. But, furthermore, this complainant knew of the decree soon after, and made no objection to it, and made or claims to have made a number of payments on it. In 1883 a chancery sale was made, and complainant claims that this was also without any notice except that usual on sales. No other personal notice is required by our practice. The sale was confirmed, leaving a balance unpaid. No personal judgment has been sought for this balance, and none can be rendered without bringing him in directly, when he can set up any defenses which he has not forfeited. He knew of this sale about a year after it was made, but does not claim to have made any objection to any one, or to have applied to the court for relief. This bill was not filed till April, 1886, about three years after the sale. Under the rules, a bill of review should be filed within the time allowed for appealing, unless on newly-discovered evidence, or when there has been some reason that is satisfactory for the delay. Here the decree was acquiesced in six yearn, and that cannot fairly be disturbed. Two years elapsed after complainant knew of the sale, and no reason is given why he did not apply for relief within a reasonable time after he found it out. The time for appealing might be a reasonable one, perhaps, within which to apply on facts as well known then as now. But. this bill was not filed until that period had passed several times over. And not only is no excuse given, but no> fact is sworn to at all. The case has no foundation, and should have been dismissed, which is now done, with costs of both courts; the decree being reversed. Sherwood, C. J., Champlin and Morse, JJ., concurred. Long, J., did not sit.	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Champlin, J. Plaintiff recovered judgment before a justice of the peace against defendant upon a promissory note dated August 18, 1886, for $75, payable to C. H. Williams, or bearer, due on or before one year from date, and signed by defendant. Defendant appealed to the circuit court for Oakland county, where a trial was had, and resulted in a verdict for plaintiff. The suit was defended on the ground that the note was given as part of a scheme to defraud the public, and was illegal and void as against public policy, and that such facts were well known to plaintiff at the time he purchased the same. The defendant is a farmer residing in Oakland county. Tbe plaintiff is an attorney at law, and is also engaged in buying and selling notes, loaning money, dealing in tax titles, trading farms, and other speculations. On August 18, 1886, one Sherwood and another person, representing themselves as agents of the Ohio & Great "Western Seed Company, went to defendant's farm, where he >vas in the field plowing, and told him they would like to sell him some “ Bed Lyon wheat;'' told him where they had sold wheat the previous year, and that they had ■always sold for parties as they agreed; and they unfolded to him the scheme for cheating the gullible portion of the agricultural community by selling wheat to them at speculative prices. They exhibited to him the bond, which he read and perfectly understood, which they proposed to give him if he would give them his notes for 15 bushels of wheat. The bond, with the indorsements thereon, discloses the whole scheme, and we therefore give the contents entire, to wit: “ No. 595. Capital Stock, $50,000.00. “This Bond is Used for Wheat Only. “ Incorporated July 21, 1885, under the state laws of Ohio, for the production and sale of grain. “Home Oeeice, Naeoleon, O., U. S. A. “Bond of the Ohio & Great Western Seed Company. “It is agreed and understood by and between the party named in this bond and said company that the transaction covered by this obligation is of a speculative character, and is not based upon the real value of the grain. “ Mr. C. V. Seeley, of Oakland county, Southfield township, witnesseth, that on or before the 18th day of July, A. D. 1887, we hereby agree to sell thirty (30) bushels of Mr. C. V. Seeley wheat, at $15 per bushel, and for which he agrees to take his pay in notes. And the said Mr. C. V. Seeley hereby acknowledges that he has bought of the said company fifteen bushels of the Bed Lyon wheat, at $15 per bushel, as a speculation, and for which he has given his note for the same, and that said price is not based upon its real value. And the said Mr. C. V. Seeley hereby agrees to allow the said company 33J per cent, of all notes taken for all of his wheat sold at §15 per bushel, as their commission. “Signed and sealed this 18th day of August, 1886. “The Ohio & Great Western Seed Company, “Per C. H. Williams, Secretary. “The Ohio & Great [Seal] Attest: J. B. Atjgenstein, President.. “Western Seed Company. . C. V. Seeley, Purchaser. On the back of said bond is the following: “Capital Stock, $50,000.00. Constitution and By-Laws.. The Ohio & Great Western Seed Co.> “This company was incorporated under the laws of the state of Ohio governing stock companies, July 31, 1885, recorded in volume 33, page 60, of the Records of Incorporation. The "following rules were adopted by the company for the sale of wheat: “ Section 1. All bonds shall be signed and sealed by the secretary of the company, and attested by the president, and this company will be responsible for their business transactions according to the laws made and provided for governing stock companies in the state of Ohio, and under which this company was incorporated. “Sec. 2. All purchasers of wheat shall receive a bond agreeing to sell double the amount of wheat purchased, at $15 per bushel, a speculative value. Each purchaser hereby agrees to allow the said company one-tliird of all notes taken for all his wheat sold at $15 per bushel, as their commission. “Sec. 3. If any purchaser of wheat from this company fails to raise the amount specified in his bond, the-said amount shall be furnished him free of charge, and sold the same as specified in the bond. “Sec. 4. There shall be no less than 10 nor more that 30 bushels of wheat sold to any one purchaser, or to more than five in any one township in one year. “Sec. 5. All wheat shall be sold by the company at $15 per bushel to .good and responsible parties, and the said company shall receive a commission of 33-^ per cent., payable in notes. “Sec. 6. It must be further agreed by said purchaser that he will do all he can to promote the interest and assist in the sale of grain in this company, and that he will report to the office of the company any bad conduct or misdemeanor on the part of any agent representing said company. “■Sec. 7. All communications concerning the business of this company shall be addressed to The Ohio & Great Western Seed Co., Napoleon, Ohio.” The wheat was furnished defendant as agreed, which he sowed, and harvested about 12 bushels to the acre, but the Ohio & Great Western Seed Company has never ■appeared to Mr. Seeley since. The man who signed his name as “ O. H. Williams, Secretary,” sold the notes given by defendant, soon after the date thereof, to the plaintiff in this suit, together with several others made by farmers in the vicinity. Several exceptions were taken to the rulings of the court upon the admission and rejection of testimony. We find no error in such rulings, and they were not of sufficient importance as to require discussion here. Aside from the refusal to give certain instructions requested by counsel for defendant, the important question upon this record is whether the note sued upon is void, in the hands of an innocent holder for value, as being against public policy; and whether, upon this issue, the refusal of the court to ■charge as requested by counsel for defendant, and the .charge as given, were proper. The scheme, upon its face, was a transparent fraud. The ■design to defraud third parties was mutual, and entered into with a common understanding between the parties. The gains to be derived by the defendant were dependent upon duping others into purchasing on a speculation in the same manner that defendant was duped, and he agreed and entered into a scheme by which two or more persons were to be defrauded, and the plunder divided, two-thirds to him, and one-third to his confederates. A similar scheme was declared by this Court in McNamara v. Gargett, 68 Mich. 454 (36 N. W. Rep. 218), to be against public policy, and void as between the par ties, and as to purchasers of notes with notice of the consideration. There is a distinction between contracts which are 'void between the immediate parties because they will not be enforced on grounds of public policy, and contracts where the statute declares them void. In the first class, negotiable instruments, fair on their face, which have, before maturity, passed, into the hands of Iona fide holders for value, will be enforced in the hands of such holders; but in the other class they are void as against the party who' gave them, and in the hands of all other parties. Edwards v. Dick, 4 Barn. & Ald. 212; Towne v. Rice, 122 Mass. 71; Aurora v. West, 22 Ind. 88; Eagle v. Kohn, 84 Ill. 292; Cowing v. Altman, 71 N. Y. 435. At the time the note in question was given and transferred to the plaintiff, there was no statute of this State' declaring such notes void. It is therefore good in the hands of an innocent holder for value, before maturity, and without notice or knowledge of the transaction in which it originated. The following requests were presented to the court by counsel for defendant, and upon the.refusal to give the instructions as requested error is assigned: “ 4. Actual notice to the plaintiff, when he purchased this note, that it was given for an illegal consideration, is not necessary to defeat his recovery. If he had notice or knowledge of such facts and circumstances in relation to what the note was given for as to make his purchase of it an act of bad faith,, then he cannot recover.” “ 6. If the plaintiff, when he purchased this note, from facts and circumstances within his knowledge relative to the consideration of the note, had good reason to and did believe that it was given upon an illegal consideration, he cannot recover. “7. If the jury find that, at the time plaintiff purchased this note, he did not know the exact terms or consideration upon which it was given, yet, from circumstances of which he had notice, he did know, believe, or have good reason to believe, that it was tainted with fraud or illegality, then he cannot recover. “8. Unless the plaintiff has satisfied you by a preponderance of proof that, at the time he purchased this note, he did not know, have notice, believe, or have good reason to believe, that it was tainted with fraud or illegality, -and did not know or have notice of facts or circumstances impeaching its validity, he cannot recover." In response to the several requests presented by the counsel for the defendant, the circuit judge charged the jury as follows: “ The plaintiff cannot recover in this case unless he is a bona ficle holder; and if you find from the evidence that,' at the time plaintiff purchased this note, he knew the circumstances impeaching its validity, then plaintiff cannot recover. “This note is void as between the parties thereto, that is, as between defendant and C. H. Williams, for the reason that it was given for an illegal consideration, and plaintiff cannot recover unless he is a Iona fide holder. “If the jury find that the consideration upon which the note was given was the bond of a company, whereby the company agreed to sell ordinary wheat under the jfictitious name of Eed Lyon wheat, at the speculative value of $15 per bushel, whereas its real value was not to exceed $1 per bushel, then such notes are void, and plaintiff cannot recover if, at or before the time he purchased it, he had knowledge or notice that this note was given on such consideration. _ “If the plaintiff had,notice or knowledge of such facts and circumstances in relation to what the note was given for, as to make his- purchase of it an act of bad faith, then he cannot recover. “The fact that plaintiff paid value for the note is not sufficient of itself to make him a bona fide holder. Although he may have paid value, still he is not entitled to recover if he had notice or knowledge of facts or circumstances impeaching its validity. “If the jury find that, at the time plaintiff purchased this note, he did not know the exact terms or consideration upon which it is given, yet from circumstances ■ of which he had notice he knew that it was tainted with fraud or illegality, then he cannot recover. “ Unless the plaintiff has satisfied you by a preponderance of proof that, at the time he purchased this note, he did not know or have notice that it was tainted with fraud or illegality, and did not know or have notice of facts or circumstances impeaching its validity, he cannot recover.” . He also charged the jury upon the right of the plaintiff to recover under the testimony in the case as follows: “On the part of the plaintiff, I charge you as follows: That this note is negotiable, and subject to all the rules as to negotiable paper, and may become the property of the holder by mere purchase and delivery. “ That the law will sustain the claim of an innocent, bona fide holder of a negotiable promissory note for a valuable consideration, purchased before due, however viciously other parties may have acted, or whatever objection to the consideration may arise. If the jury finds that the plaintiff purchased this note before it became due, innocently, and. for a valuable consideration, before maturity, by giving money for it in the usual course of business, he is entitled to recover on it. “ That the possession of a note payable to bearer, unac-' companied by any declaration or other evidence in regard to it, is prima facie evidence that the holder is the owner of it; that he took it for value before it became due, and in the regular course of business, — that is to say, if simply this note had been offered in evidence, and then both parties had rested, it would have been your duty, of course, to have rendered a verdict for the amount of the note, with the interest on it; and that is what I desire to say by this request with reference to its being prima facie evidence. But, after the note is in, then it is entirely competent to do what has been done in this ■case, — to give other evidence both as to the facts and circumstances, and oral testimony, for the purpose of determining the bona fides of the transaction. If there is nothing upon the face of a negotiable note to notify the purchaser that the note was originally given upon an illegal consideration or through fraud, the purchaser who pays value therefor, and takes it in good faith before maturity, may recover as against the maker. This is true, even though the purchaser be in possession of facts and circumstances sufficient to arouse suspicion in the minds of persons of ordinary prudence. “And in this connection I desire to say that just a mere suspicion that there may be something wrong is not sufficient to defeat it; that, if the plaintiff purchased this note before due, without knowledge of any defect of title or defense to it, and for a valuable consideration, he will take a good title, unaffected by any of the defenses now set up by the defendant. Suspicion of the defect of title, or knowledge of circumstances which would excite suspicion in the mind of a prudent man, will not defeat his title alone; that is, mere suspicion itself will not do so. A holder of negotiable paper who takes it before maturity, for a valuable consideration-, in the usual course of business, without knowledge of the facts which impeach its validity as between antecedent parties, is deemed a Iona fide holder. “That a party about to purchase a promissory note is under no obligation to call upon the maker, and make inquiry as to possible defenses which he may have, and of which the purchaser has no notice, either from something appearing on the face of the paper, or from facts communicated to him at or before the time of the purchase. That is to say, when a paper is presented to a man entirely free from anything on the face of the paper, or free from any knowledge which he may have which would go to impeach its validity, he is under no obligation to go and look the man up, and make inquiries in reference to it. “ The fact that the note was purchased by the plaintiff at a discount was nothing unusual or contrary to the usual manner in which those engaged in discounting notes transact that kind of business, and is no evidence, of itself, of bad faith on the part of the plaintiff. But I desire to say, in that connection, that the fact that it was purchased at a discount may be taken into consideration, with all the facts and circumstances, as bearing upon the question ■of good faith. Bad faith or fraud cannot be presumed without proof. That is undoubtedly true, but the proof may be not only oral testimony, but it may be acts and facts and circumstances which appear in evidence in the case where the question is .involved. * * * The fact that defendant knew, when he gave his note, that the wheat was not worth the price he was paying for it, and went into the transaction as a speculation, would not legalize the transaction, and cannot in any way help plaintiff to recover. “ There has been something said in the argument of counsel with reference to Mr. Seeley's acting in bad faith in this matter, and I desire to say to you in this connection that it does not make any difference whether Mr. Seeley was acting in just as bad faith in connection with this matter as was Mr. Williams, so far as this case is concerned. The courts hold — and I desire to emphasize' that fact to you now — that the contracts like this, as between the original parties, are absolutely void; and they are held so, not for the advantage of either individual who is connected with the matter, but for the advantage of the public, — that it is against public policy that they should be sustained by the courts. And whether Mr. Seeley expected to make a good deal of money, or whether he was acting in entire good faith, does not make any difference so far as this case is concerned. The question for you to consider in this case is, was the plaintiff acting in good faith? Did he buy this note before maturity, for a valuable consideration, without notice of the defense? That is the important question for you to consider when you shall attempt to get at your verdict. “ If, from the facts and circumstances surrounding this case, you are satisfied that plaintiff's statement in relation to his knowledge about what the note was given for is false, you are under no obligation to believe him, even though uncontradieted by oral proof. Unless his testimony has convinced your reason, you may reject any part of «it, or reject it altogether. What is true of him is true of any witness in the case. In passing upon the truthfulness of his statement, you may take into consideration his acts, and all the facts and circumstances involved in the case. “In this case the burden is upon the plaintiff to satisfy you by a preponderance of evidence that, at the time he purchased the nóte in question, he did not have knowledge or notice of the consideration upon which it was based.” The particular complaint made by counsel for defendant against the charge of the court is that the court did not, in terms or substantially, charge the jury that if the plaintiff, when he purchased the note, from facts and circumstances within his knowledge relative to the consideration of the note, had good reason to and did believe that it was given upon an illegal consideration, he cannot recover. The important part which negotiable paper performs in the business transactions of a commercial people makes it of the utmost importance that the rules which govern its transfer from one to another, and the rights of the holder, should be uniform and stable. It should not be subjected to new tests concerning its negotiability and validity in the hands of innocent holders for value. In England, prior to 1820, it was pretty generally held that bad faith alone would prevent a .holder for value from recovering upon commercial paper. In Gill v. Cubitt, 3 Barn. & C. 466, under the influence of Lord Tenterden (see Slater v. West, 3 Car. & P. 325), due care and caution was made a test. In 1834 the king’s bench held that nothing short of gross negligence could defeat the title of a holder for value. Crook v. Jadis, 5 Barn. & Adol. 909. But Lord Denman, in 1836, in the case of Goodman v. Harvey, 4 Adol. & E. 876, reasserted the doctrine, which has since been held in England, that bad faith alone could disentitle a holder for value to recover; that gross negligence might be evidence of bad faith, but was not conclusive of it. This doctrine is now firmly established in the United States. Murray v. Lardner, 2 Wall. 110; Collins v. Gilbert, 94 U. S. 753; Farrell v. Lovett, 68 Me. 326; Bank v. Bank, 10 Cush. 488; Chapman v. Rose, 56 N. Y. 140; Johnson v. Way, 27 Ohio St. 374; Shreeves v. Allen, 79 Ill. 553; Kelley v. Whitney, 45 Wis. 110; Miller v. Finley, 26 Mich. 254; Howry v. Eppinger, 34 Id. 29; Hamilton v. Vought, 34 N. J. Law, 187; Welch v. Sage, 47 N. Y. 143; Oats v. Bank, 100 U. S. 239. In Miller v. Finley, Mr. Justice Campbell said: “ There is nothing on the face of the paper to cast suspicion upon its character;, and it can only be impeached, in the hands of a holder for value, by evidence that he took it under circumstances which rendered him guilty of bad faith. The proof must show that the holder for value, who takes a note with no ear-marks of fraud or illegality, has had notice of such a nature that he could not honestly take the paper without further inquiry. The facts of which he must have either knowledge or notice must be such as go to- the defects of title." If we should adopt the test contended for by defendant, namely, that if, from facts and circumstances within his knowledge relative to the consideration, the purchaser had good reason to and did believe that it was given upon an illegal consideration, he cannot recover, it would introduce a new element of uncertainty in the legal title of negotiable paper, and permit a jury to speculate upon the effect facts or circumstances within the knowledge of the holder of. such paper produced upon his mind, and whether he had good reason to believe or did believe it was given upon an illegal consideration. Facts and circumstances innocent in themselves, and insufficient to raise a suspicion of fraud or illegality, might be deemed by one jury sufficient grounds for belief, while another would require very plain indications of fraud or unfair dealing. We think the rule which has been so long and so universally established among English-speaking people is broad enough to protect the rights of parties to such paper. Baron Parke, in the case of May v. Chapman, 16 Mees. & W. 355, said: “ I agree that ‘ notice and knowledge ’ means, not merely express notice, but knowledge, or the means of knowledge, to which the party willfully shuts his eyes." And Chief Justice Beasley, in Hamilton v. Vought, supra, said: “ Mere carelessness in taking the paper will not of itself impair the title so acquired, but carelessness may be so gross that bad faith may be inferred from it. Nor is it necessary, in order to defeat the title of the holder, that he have actual knowledge of the facts and circumstances constituting the particular fraud. It is sufficient if he have knowledge that the paper is tainted with any fraud, although he may be ignorant of the nature of it.” We think the court covered the whole law of the case in his instructions to the jury. The testimony was conflicting. If the jury believed the plaintiff, they would be justified in finding for the plaintiff; and also, we think, there was testimony which would have justified them in finding that he was a bad-faith holder. The defendant did not occupy a position which was calculated to influence the jury in going a great ways to relieve him of an obligation which he had 'voluntarily assumed with the intention of imposing a fraudulent scheme upon his fellow-townsmen. We discover no error in the record, and the judgment is affirmed. Morse and Campbell, JJ., concurred with Champlin, J.	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Sherwood, O. J. Complainant filed her bill in the circuit court for the county of Jackson, to procure the surrender and cancellation of two deeds, — one bearing date May 29, 1885, purporting to be executed by the •complainant to William H. Bussey, of the state of Maine, a brother of the defendant Mark T. Bussey, in trust for the latter, who is the husband of complainant; and the other' bearing date July 6, 1885, purporting to be executed by complainant to the said William H. Bussey. They both purport to convey land owned at the •date of the deeds, lying in the city and county of Jackson. The first of said deeds is in the form of a quitclaim, and contains a provision that said deed should never have the effect to deprive the complainant of her interest in said land, and the right to occupy the property, as the wife of her husband Mark T. Bussey, and in no other manner. The other is in form a warranty deed. Both ■deeds were duly recorded in the register’s office in the county of Jackson. The lands conveyed included her homestead, upon which she then lived and still resides. The bill charges that the deeds were forgeries, and void; and upon that ground the relief she asks is prayed. The defendant Mark T. Bussey filed his answer, and’ admitted that the deeds appear of record, and averred that they were genuine, and not fraudulent or forged;. but that they were executed by the complainant voluntarily, and for the purposes therein stated, and convey the title, to the lands therein described to the said William H. Bussey. The defendant William H. Bussey did not appear, and was brought in under the statute as a non-resident, defendant, and the bill was taken as confessed as against, him. The bill was filed in October, 1885. The proofs were-taken in open court in the month of' May, 1887, before-Judge Gridley. The defendant cross-examined the complainant’s witnesses, but put in no testimony on his part; and upon the hearing the circuit judge rendered a decree in favor of the complainant, adjudged the deeds forgeries and void, and granted the relief prayed. Defendant Mark T. Bussey asks a review of the case in this Court. On May 11, before the hearing, counsel for the appellant, made an application to the court for a postponement, for the purpose of obtaining the testimony of an absent witness. The application was contested by the complainant, and denied by the court. When the cause was called for hearing on May 19, 1887, counsel for defendant Mark T. Bussey objected to the case being heard, for the reason-that no reference of the case had been made as to William H. Bussey. This objection was overruled by the court; and the case was allowed to proceed. The circuit judge made his decree in the case on June 7, after the-cause was heard. On July 19, 1887, on the petition of defendant Mark T. Bussey, and the affidavits accompanying, an order for a rehearing was granted, upon condition that Bussey should pay costs of trial, to be taxed, within 10 days. after notice of taxation, and that he might produce and examine witnesses during that term of the court which was then in session. On September 1, 1887, defendant made a motion to further continue the case for rehearing. This motion was opposed by complainant’s counsel, and the motion was denied. In the order made denying the motion the court recites the fact that defendant had not paid the costs directed in the former order, and permitted defendant another day in which to put in proofs. No proofs were, however, ever put in by the defendants, or either of them. It was claimed by Mark T. Bussey that one of the material witnesses he wished to use was a subscribing witness to the deeds, whose' name was Case, and that the other was a Mr. Jenks; but it appears Jenks was not used, though residing in Jackson at the time, and a portion of the time he was- in the court-room. IJpon the point that no reference was made as to William H. Bussey, it only need be said none was necessary. 'The proofs were taken in open court, and the only' question in the case was brought to the attention of the court, and proofs taken upon it. The several motions were all in the discretion of the court. It seems from the record that part of them were in favor of complainant, and part for the defendant, so far as the action of the court shows. Judge Gridley’s acquaintance with the parties, and the credibility of the affiants, in all these proceedings, gave him superior advantages for information in passing upon these motions, and his decisions ought not to be disturbed unless a clear abuse of the discretion used appears; and we have failed to discover any such misuse of judicial discretion. In regard to the decree upon the merits, we are clearly of the opinion the testimony justified the conclusion reached by the circuit judge. We think the case presented by the record is one appealing strongly for the exercise of tbe equity power of the court in behalf of tbe complainant, and we feel very certain the court has committed no error in the decree rendered; and, without referring any more particularly to the testimony as it is presented, we- will only say, further, that the fraud attempted in this case can never fail to fall under the condemnation of a court of equity when its consideration is challenged, under the circumstances appearing in this case. Tbe decree will be affirmed. Champlin, Morse, and Campbell, JJ., concurred. Long, J., did not sit.	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Sherwood, C. J. The relator lives in the county of Saginaw, and is plaintiff in a cause in the circuit court for that county, wherein the Flint & Pere Marquette-Railroad Company is defendant. The cause came on for trial at the May term, 1888, and a jury was summoned for that purpose. The defendant thereupon challenged the array of the panel upon the following grounds, as stated by its counsel: “1. That the persons selected to serve as petit jurors in the year 1887, and from which the jurors of the May term, 1888, of this court were drawn in part, from the 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th wards of the city of Bast Saginaw, were not selected by the assessor of said city, and the alderman of each ward thereof, as is required by law, but it says such selection was made by the assessor of said city alone. “2. That the lists of persons selected to serve as petit jurors for the May, 1888, term of said court, and filed in the office of the clerk of this court, from all or any of the wards of the city of Bast Saginaw, were not made out. and signed by the assessor of said city and the- aldermen of said wards, nor by the assessor and a major part of the aldermen, but were made out, signed, and returned to-the clerk of Saginaw county by the assessor of said city alone. “3. And, for further cause of such challenge, it says that the list of jurors returned from the various townships and wards in Saginaw county, and on file in the office of the clerk of Saginaw county, in the year 1887, and from which lists the jury impaneled in this cause was drawn, shows that 376 names were selected and returned as petit jurors, and 216 names were so selected and returned as grand jurors, making the total number exceed by 192 the number which by law could be returned, and that the list of names so returned to serve as petit jurors exceeds by 176 the number which by law could be returned to serve as such petit jurors. “ 4. That the list of persons selected and returned from all the wards of the city of Saginaw, and from which the jurors from said city for the May term, 1888, of said court, were drawn, are all designated as petit jurors, and not one-half petit and one-half grand jurors, as required by law, and so the number of persons so selected as petit jurors from said city is excessive by upwards of 35. “5. That the lists of persons returned as petit jurors in 1887, and from which jurors for the May term, 1888, of this court were drawn, from the townships of Brady, Chapin, Fremont, James, Jonesfield, Saginaw, and St. Charles is largely in excess of the number which by law could be returned from said townships, and from each of said townships. “6. That in the lists of persons returned to serve as jurors in 1887, and from which the petit jurors for the May term of said court for 1888 were drawn, from the townships of Brady, Fremont, Saginaw, and St. Charles, 78 names are returned, 60 of which are designated as petit, jurors, and that the number of persons returned from said townships are largely in excess of that which is allowed by law. “ 7. That the number of names returned to the county clerk from the townships and wards of Saginaw county, and from which the jurors for the May, 1888, term of said court, were drawn, had no regard to the population of the respective townships and wards, or to the population of Saginaw county, computed according to the last census, of said townships, wards, and counties.” These statements of causes of challenge the plaintiff admitted to be true. The circuit judge by his order sustained the challenge, discharged the jury, and continued the cause for trial until the next term of the court. The relator now asks that the circuit judge may be required by a writ of mandamus to vacate and set aside said order. The respondent, in making answer to the order to show cause, admits the facts stated in relator’s petition to be true, and insists that he should hot be required to set aside the order, for the reason that the statutes relating to- securing a jury for the trial of the case have not been complied, with by the township and city officers. The principal questions raised by the record in the case arise under sections 7554 and 7556 of Howell’s Statutes, relating to the duties of officers in returning lists of persons to serve as jurors in the circuit court. By the first section referred to it is provided that— “ The supervisor and township clerk of each township,’’ and, in cities, “ the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district, * * * make a list of persons to serve as petit jurors, and a list of persons to serve as grand jurors, for the ensuing year,’’ the number to be based upon the population shown in the last census. By the charter of the city of Bast Saginaw, which lies in said county, the office of assessor is created, and he is required to make and return lists of persons to serve as jurors. Local Acts of 1885, pp. 350, 365. By the provisions of the charter of the city of Saginaw the controller is made the assessor of the city, and is required to make out and return,the list of jurors for each ensuing year. Local Acts of 1887, p. 727. It appears by the return of the circuit judge that the persons selected as petit jurors in 1887, and from which the jurors were drawn at the May term, 1888, in the suit in question, were drawn, in part, from the 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th wards in the city of Bast Saginaw, and were not selected by the assessor of the city, and the.alderman of each ward thereof, but the selection was made by the assessor alone; and that the lists of persons selected and returned were not signed by the assessor and aldermen, but by the assessor only. This, it is claimed by respondent’s counsel, is not a compliance with the law, and rendered the action taken by the circuit judge necessary. The selection of the jury, secured to litigants by our 'Constitution, is of first importance to parties, and they have a right to have such jury— “ Constituted in substantial conformity with the law as established; and where a departure has occurred, and the positive provisions enacted to secure and guard ‘ the right -of trial by jury1 have been violated or disregarded, there is no warrant in our jurisprudence for treating the deviations as harmless irregularities.1’ And, when the party to be affected thereby seasonably makes his objections to such deviations, he stands on substantial and valuable rights, and ought to have his challenge prevail. The provisions of the law cannot be set aside, although it may appear to us that neither party has been injured by the transgression. That we never can for a certainty know, and for this reason safety can only be secured by a -reasonable compliance with the law. There is nothing compulsory upon the Legislature as to how or in what manner lawful jurors1 names shall be returned to the box, but it is required to make some regulation upon the subject; and the general law it has enacted is of no higher or greater authority than any other enactment upon that subject. One of the princijDal objects in any mode prescribed has been that the panel shall come from the body of the county; and this means, under our system of territorial division, from every township in the county. Substantially the same provisions as we now have for getting a jury have continued during our State existence. Rev. Stat. 1838, pp. 439-446; Rev. Stat. 1846, p. 463; Laws of 1853, p. 188, § 9; 2 Comp. Laws of 1857, p. 1188; 2 Comp. Laws of 1871, p. 1719; also provisions hereinbefore referred to. Bast Saginaw received her charter as a city as early as 1859; and by an amendment in 1869 it was made the duty of the assessor of the city to prepare and furnish the list of jurors to serve as jurors from that city (see Laws of 1869, p. 432); and this legislation was entirely proper. It took the city out of the operation of the general statute in that regard. The learned counsel for respondent, however, refer us to the amendment of the general statute passed in 1881, which says: “The supervisor and township clerk of each township, and the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district, in any city, shall, at the time appointed by law for the review of the assessment roll for each year, make a list of persons to-serve as jurors," etc. (see Laws of 1881, p. 55);— And claim there is no conflict in these statutes; that the general law provides that it shall be done by the supervisor or assessor, and the charter fixes definitely which of these officers in Bast'Saginaw shall do it, but, this done, it then becomes his duty to act with the aider-men; and that the law requires that the list of jurymen made should be by the joint action of all of them. This, of course, would be a substantial repeal of the clause we have referred to in the charter of East Saginaw. I do not think such a repeal can be impliedly made. Neither do I think it was ever intended by the Legislature, or should be allowed to have that effect. It is not the rule that general statutes or acts repeal by implication special acts and chartered provisions in any such way. 1 Dill. Mun. Corp. § 87, and cases there cited. But, if it be conceded that it did -effect such repeal, it was afterwards repealed by an amendment to the charter in 1885, which re-enacted the old charter provision referred to. See Local Acts of 1885, p. 365, § 5. It may be' well contended that the statute invoked by respondent was never intended to apply to a city whose chartered provisions are like those contained in the East Saginaw charter. By that charter the assessor is a city -officer, and assesses all the property of the city, and ■comes more or less in contact with all persons therein having the qualifications of jurors; while in cities incorporated under the general law .the person assessing is but a ward officer, not acting beyond the limits of his ward; and such was the case in Detroit when the statute was first passed, in 1839. See Laws of 1839, Act No. 35, §§ 4, 5. We might further say there seem to be a peculiar fitness and special circumstances why the assessing officer ■of either township or ward or city should make the list, which is to be made from the names contained upon the assessment roll for the preceding year. The assessor is the custodian of that roll, and, haying made it himself, he should be peculiarly qualified for the work required by the statute. I think the first position of respondent’s counsel cannot be sustained. We now come to the objection made by respondent’s ■counsel’ under the second section of Howell’s Statutes referred to, being 7556, and which reads as follows: “ Such lists shall contain not less than one for every one hundred inhabitants of such township or ward, computing according to the last preceding census, and haying regard to the population of the county, so that the whole number of jurors selected in the county shall amount at least to one hundred, and not exceeding four hundred, one-half of whom shall be designated as petit jurors, and one-half as grand jurors.” It is claimed by them that the facts contained in the third and fourth paragraphs of the challenge show, that the statute was entirely disregarded, and they strongly intimate as their view that the statute cannot be applied to Saginaw county, with its present population, and they suggest that the difficulty can only be remedied by the Legislature. The particular fault claimed is that the whole number of jurors to be raised in all the townships- and cities in the county must not exceed 400, one-half of whom should be designated as petit and the other half as grand jurors; that the limitation of this number, and the-proper designation of those returned, have been utterly disregarded by the township and city officers; that in some instances one half of those returned were not designated as petit and the other half as grand jurors. An examination of the section of the statute discloses-that at no time is the number of the jurors to be returned on the lists to be less than 100 or more than 400, and one-half are to be returned as grand and the other half as petit jurors; and it further provides that the lists shall contain not less than one juror for every 100 inhabitants there shall be in the township or ward. Of course, no-serious question can arise until the population of a county exceeds 40,000; and, inasmuch as the number to be listed and returned must never exceed 400, I think it-quite apparent that after that time the ratio of population to the juror -must necessarily be increased. For instance, when the population of a county shall number 80,000, the ratio will necessarily’be one juror to every 200 inhabitants. I see no difficulty in construing the section in this manner, and thereby the obvious intention of the-Legislature will be thus attained, and the embarrassment claimed will be removed. But the statute provides for listing and returning but 200 petit jurors; and the present case shows that 376-names were returned as petit jurors, and 216 as grand jurors; that the total excess of jurors returned from the-county was 192, and in the number returned there was an excess as petit jurors of 176. There is no pretense but that the men whose names were listed and returned all have the qualifications of jurors. There is no difference in the qualifications of grand and petit jurors, and all were listed and returned by tbe. proper officers. ¥e need not consider the case of grand jurors, as it is only with the number of petit jurors returned that the parties in the case are interested. And the question raised is, does the excess stated constitute such an irregularity, and so far prejudice the suitors, as to furnish good ground for the challenge made? I think it does. It is clear that a plain violation of the law has occurred, and it is impossible for the Court to know or say that the parties will not be prejudiced thereby. It is its duty to require a compliance with the law in all cases when it is not plainly manifest no injury or prejudice can come to the parties by reason of noncompliance. In this case we cannot know this. If a less number had been returned than the law requires, the-case would have been different. In that case each person returned would not have been a legal juror. I think the case comes clearly within the principles first above stated. In regard to the number of jurors returned from the several townships mentioned in the challenge, the law was not complied with; and in this case the excess of the quota from each township, and its effect, for the reasons above given, apply with equal force to them. Had the number of petit jurors, with those mentioned from the townships named, in all not exceeded the lawful number, another and different case would have been presented, and upon which no opinion herein is expressed. It may be, however, proper to say that the returning officers should never return more namés for either grand or petit jurors than the law requires; but the full number which the population of a town or ward entitles it. to should be listed and forwarded to the clerk, as required by the statute. 'While, however, it is proper that the-jury-list should not exceed the statutory number, there would be considerable public inconvenience in holding that. this cannot be rectified. Such mistakes are often made; and, if they should be held to invalidate the jury-lists entirely, the business of the courts may be seriously delayed, and the interests of both civil and criminal litigation would be jeopardized. Where all the persons enrolled are competent jurymen, there cannot be any legal presumption that one is more fit than another. The lists may be corrected by striking off all names listed below the requisite number first appearing. All beyond those was improperly returned. A mandamus will therefore issue directing the circuit judge to vacate the order complained of, and he will direct the’ clerk to strike from such excessive lists the ngmes as suggested, to sufficiently reduce them to the number lawfully authorized to be returned; and this will be held to be the duty of the court in all like cases. The other Justices concurred.	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Carr, C. J. In the latter part of 1954 the owners of certain lands in Delta township, Eaton county, subdivided and platted the property, which is referred to in the record before us as Huntington Acres Subdivisions Nos. 1, 2, and 3. In connection with the proceeding a so-called agreement and declaration of restrictions was prepared by said owners, duly executed, and recorded in the office of the register of deeds of the county. Among other, provisions was the following: “A purchaser of any lot in Huntington Acres Subdivision No. 1, No. 2, or No. 3 agrees by such purchase for himself, his heirs and assigns to share proportionately with all other property owners in the cost of any improvements in his respective subdivision agreed to by the owners of a majority of the lots in his respective subdivision. For the purpose of voting on any proposed improvements, the holders of executory land contracts while in possession of said property shall be deemed to be the owners of said lot and entitled to cast the vote to which the lot is entitled. In other instances the holder of the record title shall be entitled to cast the vote of the lot.” The plaintiff herein, Burton-Jones Development, Inc., was organized in 1957 for the purpose, among others, of developing Huntington Acres subdivisions. Its president was Leland R. McElmnrry who was the owner of 50% of the issued stock of the corporation. At the time McElmurry owned 27 of the 45 lots contained in Huntington Acres Subdivision No. 1. It was his desire as the owner of a majority of the lots to cause improvements to be made therein involving the installation of storm sewers in certain streets so as to permit said thoroughfares to be “blacktopped.” The record before us discloses that the improvement by blacktopping said streets necessitated drainage. Representatives of McElmurry contacted other lot owners in Huntington Acres Subdivision No. 1, discussing the matter of blacktopping certain streets and the necessity for a storm sewer in connection therewith. Some lot owners favored the project and agreed to share the costs of the storm sewer, while others were unwilling to do so. It does not appear that any formal meeting of lot owners was held. The owner of the majority of the lots in the subdivision, McElmurry, decided that storm sewers should be installed. To that end the subdivision developer, plaintiff herein, entered into a construction contract with the Millett Excavating Company by which the work was undertaken and completed in June, 1957, at a total cost of $48,087.78. The drainage tile were placed in the center of dedicated streets on which the lots owned by defendants and appellants herein fronted. It is conceded that installation of storm sewers in Huntington Acres Subdivision No. 3 did not increase the cost of the project attributable to Huntington Acres Subdivision No. 1. The amount of the cost attributable to lots owned by McElmurry was paid by him. No claim is made that the total cost of the project was unreasonable;, nor that the method of prorating the -expense of the improvement was not proper. It further appears from the agreed statement of facts that the project was approved by the Eaton county drain commissioner, and that payment of the total cost was made by plaintiff. Demand was made npon appellants herein for payment of their prorated shares of the project based on a front foot apportionment of the total cost. Snit in equity was instituted against defendants Flake, which was later transferred to the law side of the court. Defendants filed answer and motion to dismiss, which motion was denied. Subsequently, following a pretrial hearing, the parties agreed that the action based on the covenant in the recorded declaration of restrictions, above quoted, should be tried in equity. In consequence, under date of December 10, 1959, plaintiff filed an amended bill of complaint joining as defendants other lot owners who had refused to make payment of their alleged shares of the cost of the improvement' on demand therefor. Such joinder was in accordance with the order of the court denying the motion to dismiss and directing that plaintiff’s cause of action, insofar as based on the covenant, should be determined in equity. Defendants filed answer to the amended bill of complaint denying the right of plaintiff to recover and challenging the propriety of the action taken. Ry way of affirmative defense it was alleged that the covenant could not be enforced because it was vague, indefinite, and ambiguous, that no meeting of lot owners was held for the purpose of voting on the matter, that the covenant lacked mutuality, and that it did not pertain to improvements of the character here involved. It was further claimed on behalf of defendants that the storm sewers should have been installed by the Eaton county drain commissioner. The controversy came to hearing before the circuit judge and proofs were offered by the respective parties. The circuit court reporter died before he had transcribed his notes of the testimony, and apparently it whs impossible for the parties to procure a transcript to be made by another reporter. In consequence, the factual questions, so far as such are involved in the case, have been incorporated in a statement of facts on which the parties are agreed except as to any reference or references being made to the Ingham county drain commissioner during the course of the proceedings. Counsel for defendants thought that such reference had been incorporated in their motion to dismiss which, presumably, was made orally in open court, but counsel for plaintiff disagreed. Notes made by the trial judge in the course of the proceeding failed to indicate that anything was said at any time with reference to a possible interest on the part of the Ingham county commissioner. As before noted, the subdivisions were located entirely in Eaton county. However, an intercounty drainage district had been established at a prior time, and the lands in question were within the boundaries of that district. At the conclusion of the proofs defendants renewed their previous motion to dismiss. Said motion was denied, and decree entered for the plaintiff sustaining the validity of the covenant contained in the agreement and declaration of restrictions as executed and recorded by the owners of the property in 1954. It was expressly found also that the cost of the improvement was reasonable, that it had been paid in full by plaintiff corporation, and that plaintiff was entitled to recover from the defendants the amounts apportioned on a frontage basis to their respective lots. It may be noted in this connection that the said agreement as made by the owners of the property declared that the provisions set forth therein should bind the land and that enforcement should be by means of an action in the circuit court of Eaton county in chancery. The decree provided also that the trial court would retain continuing jurisdiction to enforce liens for the charges made on the respective lots of defendants in the event that amounts found due were not paid. Prom the decree entered defendants have appealed, raising the following 3 questions : “1. Is this covenant unenforceable because of ambiguity?-? “2. Does this covenant authorize the majority owner of the lots ex parte to ‘vote’ to install a drain in a public highway without a noticed meeting and opportunity to be heard ? “3. If the covenant be construed as an agreement between the property owners to construct a drain in a public highway, is the agreement void because it violates public policy?” Appellants’ argument that the covenant on which plaintiff’s cause of action is based was and is unenforceable because of ambiguity is apparently based primarily on the claim that the covenant does not specify the “nature, extent, location and cost” of proposed improvements. It may be inferred that at the time the agreement and declaration of restrictions was executed by the owners of the property in 1954 they contemplated the necessity for improvements that would benefit the Huntington Acres subdivisions and promote their development in the future. That improvement of the streets traversing the property would have such a result is a logical conclusion, and we are concerned in this case with a project of that nature. It is, we think, a matter of common knowledge that parties interested in the development of subdivisions generally recognize the necessity of providing for improvements of the character here in question. Primarily we are not dealing with a matter of drainage but, rather, of the installation of storm sewers to take care of surface water to the end that dedicated streets might be blacktopped. Viewed from a realistic, standpoint the project which was accomplished under the contract made by plaintiff had for its ultimate object the improvement of the streets. It is significant that no attempt was made by anyone to prevent the carrying out of the contract. No claim is made that defendants were not fully advised with reference to the contemplated proceeding •or that they were misled or deceived in any respect. However, they elected to wait until the work was done and paid for, and then denied their liability to contribute to the cost in accordance with the covenant notwithstanding that they had acquired their lots in Huntington Acres Subdivision No. 1 “subsequent and subject to the aforesaid covenant,” as appears in the agreed statement of facts. We cannot agree with appellants’ claim that tiie covenant, which the trial judge properly held to run with the land, was or is ambiguous as applied in the instant case. Street improvements by subdividers in newly-platted property is common in practice. Provision for meeting payment of obligations so incurred is doubtless desirable. No claim is here made on behalf of any of the defendants that the existence of the covenant subject to which they made their respective purchases was not known to them. They could scarcely have failed to realize that the owner or owners of a majority of the lots in any of the subdivisions could bring about the making of an improvement that would operate to the benefit of all property therein. It will be noted that the covenant pursuant to which plaintiff claims the right to recover did not provide for a meeting of the lot owners for the purpose of discussing the desirability of a proposed improvement. It appears from the statement of facts that representatives of the plaintiff and of the owner of a majority of lots in subdivision No. 1 discussed the matter here involved with lot owners, some of whom approved the project and indicated their intention to pay their proportion of the cost. A formal meeting and the casting of votes thereat was not requisite to the proceeding, nor conld it in any conceivable way have affected the result. Appellants were charged with notice of their rights and obligations when they purchased their lots, and their possible failure to give due consideration to probable future action cannot be made the basis of equitable relief. We see nothing in the covenant here involved that may fairly be said to violate any recognized rule of public policy. As before pointed out, the installation of storm sewers for the disposal of surface water preceding the blacktopping of the streets in question was not primarily a drainage project instituted for the protection of the public health. The making of improvements of such character is not only beneficial to adjoining property owners but carries with it also a benefit to the traveling public generally. Such projects, as ordinarily carried on in new subdivisions, may not be said to be against public policy. Appellants assert in effect that the drain commissioner of the county, or perhaps of the 2 counties, Baton and Ingham, should have installed the storm sewers to prepare the streets in the subdivision for blacktopping. It appears affirmatively in the record that the drain commissioner of Eaton county approved the project here involved. It may not be assumed that the Ingham commissioner would have done otherwise had he been consulted. In any event, no one is asserting on behalf- of the public generally that the project as carried out under the contract made by plaintiff was detrimental to the public or violated any rule of public policy. We think the principle recognized in Kiley v. Bond, 114 Mich 447, cited by the trial judge in his opinion, is applicable here. It was there held: “The question whether the highway officers should be made parties to a proceeding to deepen and widen a drain located within the limits of a highway is not open to consideration in a suit by adjacent land owners to enjoin the prosecution of the work.” (Syllabus. 2.) Counsel for plaintiff have called attention to decisions from other States involving issues of the character raised by appellants herein. In Neponsit Property Owners’ Association, Inc., v. Emigrant Industrial Savings Bank, 278 NY 248 (15 NE2d 793, 118 ALR, 973), rehearing denied 278 NY 704 (16 NE2d 852), the plaintiff, being the owner of a tract of land, proceeded to develop it as a residential community and to convey lots to purchasers, said lots being described by reference to a filed map and to roads and streets shown thereon. Involved in the case was a covenant contained in the deeds to the purchasers of lots, providing that the property described should be subject to an annual charge in an amount fixed by the grantor or its successors and assigns, not exceeding, however, $4 per lot 20 x 100 feet. The amount so> paid was required to be devoted to the maintenance-of the “roads, paths, parks, beach, sewers, and such other public purposes as shall from time to time be determined by the party of the first part, its successors or assigns.” The covenant further granted the right to bring action to recover the charge so imposed and to enforce a lien therefor. In sustaining* the right of recovery the court held that the covenant was one running with the land, saying in part after a discussion of prior decisions (pp 259, 260): “Looking at the problem presented in this case from the same point of view and stressing the intent and substantial effect of the covenant rather than its form, it seems clear that the covenant may properly be said to touch and concern the land of the defendant and its burden should run with the land. True, it calls for payment of a sum of money to be expended for ‘public purposes’ upon land other than the land conveyed by Neponsit Realty Company to plaintiff’s predecessor in title. By that conveyance the grantee, however, obtained not only title to particular lots, but an easement or right of common enjoyment with other property owners in roads, beaches, public parks or spaces and improvements in the same tract. For full enjoyment in common by the defendant and other property owners of these easements or rights, the roads and public places must be maintained. In order that the burden of maintaining public improvements should rest upon the land benefited by the improvements, the grantor exacted from the grantee of the land with its appurtenant easement or right of enjoyment a covenant that the burden of paying the cost should be inseparably attached to the land which enjoys the benefit. It is plain that any distinction or definition which would exclude such a covenant from the classification of covenants which ‘touch’ or ‘concern’ the land would be based on form and not on substance.” An interesting case presenting a situation analogous in some respects to that in the controversy at bar is Stephens Company v. Lisk, 240 NC 289 (82 SE2d 99). The plaintiff in that case developed a tract of land referred to as Myers Park. Lots owned by the principal defendant were conveyed by the plaintiff by deeds containing a provision that if the grantor decided to grade, pave, or otherwise improve streets or sidewalks in or adjacent to block 80 in which defendant’s property was located, or to put in water or sewer lines or other improvements, the property conveyed should bear its part of the cost thereof on a frontage basis. It was specifically declared that such covenant should run with the land. In the spring of 1950 the plaintiff caused a certain street along block 80 to be graded and paved, and provided with water and sewer lines. Plaintiff made the improvement without consulting with or obtaining prior consent of the lot owners. The proportion of the cost chargeable against defendant’s property on a frontage basis was $513.79. Action was brought to recover such amount, reliance being placed on the covenant in question. The covenant was sustained and the court construed it as vesting in the grantor authority to cause the improvement to be made without reference to consent on the part of lot owners. It was held that the covenant was of such character as to run with the land. After disposing of the question of construction, the court commented (p 296): “Finally, it is not amiss to observe that the findings of fact fail to show (1) that defendants made any complaint when the Stephens Company was making* the improvements, or (2) that the amount of cost of the improvement sought to be recovered in this action is not the part of the cost allocable to the lots of defendants in accordance with the provisions of the covenant. Indeed it is agreed that it is the amount. Therefore no injustice appears.” The language quoted may well be applied to the situation in the case at bar. As before noted, defendants herein did not undertake to prevent the making of the improvement in the street adjacent to their property, and it is also conceded that the cost of the project was not excessive. In accord with the above decisions is the holding of the supreme court of Mississippi in Mendrop v. Harrell, 233. Miss 679 (103 So 2d 418, 68 ALR 2d 1013). There the covenant involved in the litigation, on the basis of which plaintiffs sought to recover costs of a street improvement, read as follows (p 684): “7. It is further understood and agreed that said Henry W. Harrell and his successors in title agree to bear all the expense required of them incidental to any street or sidewalk paving that may be done" in the future, adjacent to the property owned by said Henry W. Harrell, described in this instrument. “8. These covenants are to run with the land, and shall be binding on all parties and all persons claiming under them for a period of 25 years from the date these covenants and agreements are recorded, after which time said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of lot owners in Sylvan Flats Subdivision (and any additions thereto) has been recorded agreeing to change said covenants in whole or in part. “9. Enforcement shall be by proceeding at law in equity against any person or persons violating or attempting to violate any agreement, either to restrain violation or to recover damages.” All deeds of the lots in the subdivision involved in the case contained like provisions. After plaintiffs purchased the land in 1953 they installed water lines, curbs, gutters, and paved streets. Such improvements were made to enable purchasers of lots to •obtain loans insured by the Federal housing administration and the veterans administration. A like consideration was involved in the instant case. Defendant Harrell paid the paving costs on 4 lots but subsequently refused to reimburse for the cost of paving a street in front of 2 other lots that he had acquired. Thereupon plaintiffs filed actions to recover as to each of said lots, which cases were consolidated for trial. As in other cases of similar nature, the court held that the covenant ran with the land. In summarizing such conclusion it was said (p 690): ' “In brief, the covenant in the 1955 deed from Mendrop and Gay to Harrell is a valid, affirmative covenant running with the land, by which the land is burdened with an obligation to pay the expenses incidental to street paving which might be done. It is so related to the land as to enhance its value and confer a benefit upon it. It is also beneficial to the property and lots in the subdivision owned by appellants and by other property owners therein. “Moreover, we think that a fair construction of the covenant, in the light of the facts and circumstances existing at the time of its execution, and according to its terminology, show that the parties intended that the covenant include the expense or costs of the construction of street paving, and also curbs and gutters. The provision expressly refers to expenses 'incidental to any street or sidewalk paving that may be done in the future, adjacent to the property.’ ” Citing among other authorities Neponsit Property Owners’ Association, Inc., v. Emigrant Industrial Savings Bank, supra, the court concluded (p 689) that “covenants to pay part of the cost of making' or maintaining general improvements can be created to run with the land.” In accordance with its conclusions judgment was rendered in favor of the plaintiffs. We conclude that the trial judge correctly determined the issues presented on the record before him. The decree entered is affirmed, with costs to appellee. Dethmers, Kelly, Black, Kavanagh, and Otis M. Smith, JJ., concurred with Carr, C. J.	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Kavanagh, J. Plaintiff, a plumbing contractor, instituted this action in the Wayne circuit court to recover the balance due on work and materials furnished by plaintiff to Jared Builders, Inc., and the other defendants. The 3 individual defendants-were the sole incorporators, officers and directors of all the corporate defendants. These individual defendants, through the several corporations, engaged in the building business in the Wayne county area. Plaintiff’s claims are based upon transactions-entered into with Jared Builders, Inc., for the performance of services and the furnishing of labor and materials. Plaintiff’s claim as set forth in the amended declaration alleged that although the several corporations were incorporated as separate entities, they actually were in fact operated as the agents, instrumentalities, buffers, tools, and alter egos of the individual defendants, and they were actually started, organized, supervised, and controlled by said individual defendants as though they were their own individual enterprises; funds were intermingled; payments were made to materialmen and suppliers without regard to the corporation which-was actually obligated to perforin the function; advances and loans were made to the individuals by the corporations without corporate authority and to-suit the purpose of the individual defendants; new corporations were organized without payment of capital by the individuals who claimed to be stockholders. The suit attempted to obtain judgment against the individual defendants. It was stipulated that the amount due and owing by Jared Builders, Inc., was $3,100 plus interest from June 1957. The issue on the trial was whether the corporate veil of Jared Builders, Inc., could be pierced to hold liable, in addition to Jared Builders, Inc., the individual and other corporate defendants, jointly and severally. The trial court held the corporations were mere shams and that the record indicated not 1 of the corporations was operated as a legitimate corpo ration. Accordingly, the court rendered a judgment of $3,758.75 against all the defendants, jointly and severally. Defendants on appeal contend the trial court erred in disregarding the corporate status of Jared Builders, Inc., by holding the individual and other corporate defendants liable. Justice Bushnell, in Gledhill v. Fisher & Co., 272 Mich 353 (102 ALR 1042), stated the rule this way (pp 357, 358): “Before the corporate entity may be properly disregarded and the parent corporation held liable for the acts of its subsidiary, I believe it must be shown not only that undue domination and control was exercised by the parent corporation over the subsidiary, but also that this control was exercised in such a manner as to defraud and wrong the complainant, and that unjust loss or injury will be suffered by the complainant as the result of such domination unless the parent corporation be held liable.” Justice Butzel, writing for a unanimous court, in Herman v. Mobile Homes Corp., 317 Mich 233, 243, stated the rule as follows: “In determining whether the corporate entity should be disregarded and the parent company held liable on the contracts of its subsidiary because the latter served as a mere instrumentality or adjunct of the former, each case is su>i generis and must be decided in accordance with its own underlying facts. (Citing cases.)” In the case before us the trial court found: “That these corporations were all formed for the purpose of building, and as 1 of the witnesses testified; I believe Jared Schubiner, formed for the purpose of trying to limit liability and for tax purposes. There were about a dozen corporations formed. They all had common directors. They had 1 registered office. The capital stock was not paid in until profits were made. The corporations were not really-operated as corporations. They never held meetings. The minutes were not up to date. They all had the same registered agent and also they formed 4 partnerships. There was a constant interchange of funds among the corporations without any care as to the-corporate structure, and whenever the corporations-got in great financial difficulty they were bailed out, if they had to be bailed out, by another operation,, which is not a defendant here, the Elliott Travel Service, but which is one run by the 2 Schubiner brothers. “Now it appears to the court that these corporations were all agents of each other; that these corporations were manipulated by the individual defendants for the sole purpose of lining their own pockets and evading their responsibility whenever they could do so. They were used as shams. They were used in total disregard of the meaning of corporate entities. The corporate status and the corporate right was abused and they were nothing more than a mere-sham to allow the individuals to operate as much as they wanted to and in an effort to avoid the eventual day of reckoning. There is nothing in this record to indicate that any 1 of these corporations was operated as a legitimate corporation or operated in a manner such as to entitle this court to give it the privilege that a corporation is generally entitled to.” This is a law action tried before the court without a jury. We do not reverse in such a case unless the evidence clearly preponderates opposite to the finding of facts of the trial court. Sorel v. Crantz, 362 Mich 154. After a review of the record, appendix and briefs, we find that the evidence clearly preponderates in favor of the trial court’s findings. We conclude the trial court correctly held the plaintiff was entitled 'to a judgment against all of the defendants, jointly .and severally. The judgment against the corporate defendants having been subsequently set aside by the trial court by reason of their discharge in bankruptcy, the judgment of the lower court is affirmed as to the -other defendants jointly and severally. Plaintiff shall have costs. Carr, C. J., and Dethmers, Kelly, Black, Souris, ■■and Otis M. Smith, JJ., concurred. Adams, J., did not sit. See CL 1948, § 614.16 (Stat Aim 1959 Cum Supp § 27.825[1]).-— 'Repórter.	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Kavanagh, J. Relying on the so-called “civil damage act” (CL 1948,.§ 436.22, as amended by PA 1958, No 152 [Stat Ann.1959 Cum Supp § 18.993]) , plaintiff Ida Fletcher, widow, sued the defendant licensees for having caused the unlawful intoxication and subsequent death of her husband, Carl Fletcher. Ida Fletcher brought 4 other suits as guardian of each of her 4 children. All were consolidated for trial. ' The jury rendered a verdict against all of the defendants jointly in the sum of $4,200 in each case. Motion for new trial was made and denied by the "trial court, and only defendant Anise A. Flynn appeals. Since the questions are identical, all 5 suits will be referred to in this appeal as 1 item. The sole question on appeal is: 1 Was there any causal connection between the accident and the selling or serving of alcoholic liquor to deceased by appellant, contrary to the provisions of the statute ? At the time of the accident defendant-appellant Anise A. Flynn and defendant Alexander Suchorski were partners in a licensed class C bar, known as the “400 Bar.” Defendants Papa owned and operated a store licensed to sell liquor, beer and wine to be carried out and did business as “Bill and Rick’s Market.” The 400 Bar was located at 20731 John R street near 8 Mile road in the city of Hazel Park. Bill and Rick’s Market was located on Dequindre street at approximately 15-1/2 Mile road in the city of Warren. The pertinent facts are as follows: On Sunday, March 29,1959, early in the afternoon, Carl Fletcher, in the company of a man by the name of Armstrong and 2 women, drove to Bill and Rick’s Market, where they purchased a fifth of liquor. They consumed the liquor in their automobile. They again went in the market and purchased a second fifth, of liquor, and the 4 consumed this fifth. Carl Fletcher then went into the market and obtained a pint of liquor. Armstrong testified that as Carl Fletcher went in for the pint, he was unsteady on his feet. After consuming the pint, the’party drove back to the Fletcher home. Armstrong testified they didn’t stay long at the Fletcher home, but proceeded in Armstrong’s car to the 400 Bar, which was operated by appellant. During the trip from the Fletcher home to the 400 Bar, Fletcher produced another pint of liquor. Armstrong testified he didn’t know whether this was entirely drunk by the timé" they came to the 400 Bar. He did testify, however; that at this point Fletcher was staggering and so were the women. On arrival at the 400 Bar, one of the women bought a round of drinks, consisting of 4 bottles of beer, which the 4 of them consumed. Shortly thereafter Armstrong left the table and upon his return found 4 more bottles of beer and some wine on the table. Armstrong didn’t know whether Fletcher finished his second bottle of beer. Armstrong and one of the women left the 400 Bar at this time. He didn’t know what time it was, but guessed it was after 8 o’clock in the evening. The next we hear about Carl Fletcher is when he arrived on foot, alone, at the home of Raymond Krause at about 8:30 p. m. The Krause home is located in Hazel Park about 3 blocks north and a half block west of the 400 Bar. Fletcher left the Krause home about 9:05 p.m., proceeding east toward John R street on foot. It was drizzling rain. Krause never saw him again. Krause testified Fletcher was very drunk when he was at his home. No one saw Carl Fletcher after he left the Krause home until he was struck by an automobile on John R street, about 20 to 25 feet south of the intersection of Woodside, in the city of Madison Heights. The- only account of the accident was given by the driver, of the. car that struck Fletcher. The driver testified concerning the accident as follows: On the night of March 29, 1959, he was driving his 1957. Chevrolet car north on John R street. His wife and 3' children were with him. He was driving at 45 miles p.er hour. He could see as much as 3/4 of a mile or more ahead, and although it was drizzling rain he had his lights on and his windshield wipers operating, so that nothing prevented him- from seeing the-, rb.adway in front of him. He testified that no cars passed his car going in either direction for approximately 2 to 4 minutes prior to the accident. He testified that when he first saw Carl Fletcher in the roadway he was right on top of him and Fletcher was coming directly at him. He swerved to the left partially on, to the other half of the highway, but his right front fender struck Fletcher. . Two .police officers were following the car. Officer Liiiville testified he saw the car swing abruptly to the.left;, that there were no skid marks from the car ánd the exact point of impact could not be determined. The record discloses it was a cold, rainy, drizzly night and.that Fletcher had on a dark or black jacket and a pair of blue jeans. It was about 10:45 p.m., when the accident occurred. Fletcher was found on the right shoulder of the road. Fletcher was removed to a hospital in Royal Oak, where he subsequently died. The police officers testified there was a strong odor of alcohol on Fletcher. An autopsy was performed on the body of Carl Fletcher and a sample of blood removed and sent to the State laboratory at Lansing for examination, and analysis. The State laboratory chemist and toxicologist analyzed the blood and testified it contained .15% alcohol and that such a contént would' put a person under the influence of alcohol. The toxicologist also testified that in his opinion the level of alcohol in Fletcher’s blood had been reduced considerably by the time the blood sample had been taken due to blood transfusions given Fletcher on admission to the hospital. Appellant contends there is no showing of any causal connection between the accident and the selling or serving of alcoholic liquor by the appellant to the decedent. Appellant relies on the case of Bryant v. Athans, 362 Mich 17, where, in a per curiam opinion, this Court said (p 18): “Plaintiff made a prima facie case of violation of the statute with proof that defendant’s employees continued to serve intoxicating liquor tó her husband, after he became intoxicated. She proved that her husband left defendant’s bar, intoxicated,-' about 10 o’clock i-n-the evening of October 14,1954. From this point there is a .hiatus in the proof. The decedent’s mangled body-was found, about'9 'o’clock-the next morning, in the tunnel of tíre New York Central Railroad ('extending under the Detroit river frpm- Detroit to •'Wdiidsor'). The question is whether-there is proof,' or permissible inference-from proof, -upon which the jury legally coiild have' found' Gausal connection between the statutory violation and the-- decedent’s, mortal injuries. ■ . . ■ , “For want-of pro'of that decedent ‘ could have-traveled, while intoxicated, from.- defendant’s bar.to th’e place where his- body, was found;-for want of proof -that the. decedent’s, injuries were -sustained prior to wearing off of his intoxicated-condition, and for want of proof from, which it might fairly ,be inferred that foul'play or other superseding cause did not intervene, we conclude that the cause-of injury’ and death' in this case was conjectural and that' the trial judge was right in ordering 'a verdict for defendant.” ’ The instant case differs materially from the case of Bryant v. Athans, supra. The record here discloses the drinking of unbelievably excessive amounts of liquor by Fletcher. The body was “posted,” samples of blood taken and the analysis admitted in evidence. The question of its admissibility is not here on appeal. The time of death was established. The driver of the car that hit decedent testified Fletcher was coming right at him. Might not the jury, knowing how much liquor Fletcher had consumed, infer he was still intoxicated from the fact he was walking right at the car? All of these facts distinguished the instant case from that of Bryant v. Athans, supra. In Butrick v. Snyder, 236 Mich 300, 305, this Court said: “While it is true that a verdict may not rest upon bare conjecture (Fuller v. Ann Arbor Railroad Co., 141 Mich 66 [18 Am Neg Rep 489]), it is also true that a finding as to a particular fact may be based upon inferences fairly drawn from other facts established by proof. Waidelich v. Andros, 182 Mich 374. The burden was on the plaintiff to prove that the dynamite caps were left in the tool shed by defendant’s employees. If unable to furnish positive evidence of this fact, he might establish it by circumstantial proof of such a nature as would create a probability sufficiently strong to lead the jury to conclude that such was the fact. Dunbar v. McGill, 64 Mich 676. The reasonable inferences which may be drawn from the affirmative facts proven are evidence, and not presumptions.” See, also, the discussion in Firemen’s Insurance Co. v. Sterling Coal Co., 348 Mich 564. An examination of the record discloses to us that there were sufficient facts and permissible inferences from facts from which the jury could conclude there was a causal connection between the accident ■which, struck down Carl Fletcher and the selling or serving of alcoholic liquor to Fletcher by appellant, contrary to the statute. See Wadsworth v. New York Life Insurance Co., 349 Mich 240. On the record before us it may not be said that the determination reached by the jury was contrary to the preponderance of the evidence. Under such circumstances, this Court does not reverse. In re Granville Estate, 345 Mich 495; Meyers v. Fort, 344 Mich 312. The verdicts and judgments are affirmed. Plaintiffs shall have costs. Carr, C. J., and Dethmers, Kelly, Black, Souris,, Otis M. Smith, and Adams, JJ., concurred. CL 1948, § 436.22, as amended by PA 1958, No 152 (Stat Ann 1959 Cum Supp § 18.993) reads in part as-follows: “Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means qf support or otherwise by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to' any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the/ person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and -in any action provided for' .in this section, the plaintiff shall have the right to recover aetual and exemplary damages in such sum not less than $50 in each case as the court or jury may determine: Provided, That no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In ease of the death of either party,' the action or right of action given in this section shall survive to or against his or her exeeutor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife, parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife, parent or ehild, shall be his or her sole and separate property. Sueh damages together with the costs of suit shall be recovered in an action of trespass on the ease Before any court of 'competent jurisdiction and in any case where the parent shall be entitled to añy.such damages, either the father or mother may sue alone therefor, but recovery by 1 of such parties shall-be a bar to suit-brought-by. the other.” ■ •	[ -18, 55, 13, 56, 3, 0, -17, 10, -19, 28, -36, -36, 13, -41, 18, -13, 23, 27, -23, 0, 23, -25, -22, 0, 1, 15, -20, -5, -55, 21, 20, 12, 3, -25, -3, 10, 18, -10, -36, 20, -32, 13, 8, 27, 8, 4, -6, -41, 22, 16, -37, -35, 35, -1, 39, -26, 20, 14, -24, -12, -21, 15, -57, 4, -8, -11, 10, -11, -4, -26, -24, -23, -24, -15, -6, -6, -36, 19, 8, -5, -50, 33, 58, 46, -26, 3, -12, 5, 2, 44, 2, -6, -26, -21, -15, 10, -27, 26, -4, -3, 14, -47, -3, 3, 33, 47, -15, -16, -20, -1, -45, 9, 57, 9, 33, -60, -13, -19, -42, 50, 32, 39, 74, -45, 15, -58, -17, 29, -62, 5, 6, 7, 3, -13, -5, -4, -27, 19, -44, 3, 1, -15, 0, -24, 30, 34, -18, -16, 14, -16, -30, 6, 52, -17, 24, -39, 55, -31, 24, 12, -17, -33, 45, 0, -8, -24, 3, 1, -27, -22, 9, 43, 26, 45, 72, 34, 59, -73, -61, 3, -20, -8, 6, 8, 18, -66, -36, -50, 30, -39, 16, -38, -50, 22, 0, -4, 13, -9, 68, -36, -1, -24, 16, -15, 59, 12, -34, 34, 0, -52, 7, -33, -19, -20, -18, -15, -28, -24, 2, -57, -63, 0, -3, -59, -83, -18, -35, -39, -37, -33, -2, -33, -26, 63, -46, -29, -2, -11, 35, 14, 25, 15, -31, -45, -5, 13, 42, 35, -15, 28, 37, 15, 3, 3, 14, 1, 28, -19, 25, 17, 27, 20, -1, 47, 10, -5, 26, 0, -23, 40, 37, -35, 73, 6, -9, -32, -12, 19, 27, 70, 43, 14, -5, -40, 0, 42, -64, 42, -17, -33, 66, -35, -21, -1, 19, 28, 30, 10, 8, 34, 15, -18, 0, 26, 7, 21, -38, -7, -31, -29, -35, -45, 5, -22, 37, 35, 9, 41, 14, -23, 14, -5, -14, 14, -7, -75, 5, 2, 15, 0, 0, 47, 18, 5, -48, -60, 51, -1, -15, 45, 18, -5, 22, 22, -44, 5, 14, 55, -11, -25, -45, -13, 51, -3, 14, -3, 15, 0, 13, 44, -11, -19, -30, 36, -7, -6, 20, -6, -38, 36, 17, 43, 20, 0, -40, -39, 14, 58, 10, 64, 54, -55, 17, -30, -55, 36, -5, -52, -43, 83, -6, 14, 8, -53, 6, 13, -4, 24, 0, -10, -55, 9, 18, -49, -56, -23, -28, 19, 15, -3, -64, -37, 28, 2, -9, 23, -15, -45, -56, 11, 18, 12, 47, -62, 44, -58, -3, 25, 38, 23, -46, 11, 19, 8, 6, -1, 3, 7, 49, -10, -13, 23, -13, 21, 12, 32, -23, -6, 52, -24, 15, 23, 27, 7, 8, 22, -8, 43, 39, 0, 46, -9, -9, -39, 81, -25, -55, -9, 17, -46, -2, -7, 6, -4, -1, -1, 75, 2, 26, -24, 18, 56, -46, -29, -34, -43, 4, -26, -8, -25, 111, -19, -13, -46, -24, -5, 11, -7, -45, -29, -43, -19, -64, 17, 14, 1, -6, 25, 2, 1, -4, 16, 15, 18, -29, -26, 15, 44, 20, -39, 32, -3, -23, 40, -31, -51, 3, 6, 23, -61, 35, -46, -13, -20, -17, 8, 0, -10, -5, 10, 4, 32, -23, -30, -20, -19, 6, 26, 1, 53, 17, -50, -38, -16, -6, 8, -7, -14, -44, -3, 3, -1, 15, 4, 35, -6, -6, 22, 42, 24, -65, 26, 28, -39, 29, 36, -5, 3, -48, 25, 35, 24, -40, 36, -46, -9, 2, -12, -20, -8, -42, 37, 21, 29, 45, -33, 39, -39, -21, -7, 12, -5, 22, 16, 20, 22, -30, 29, 14, -50, 45, -26, -29, -61, -57, -10, 6, -4, -9, -39, -33, 53, -15, -15, 4, 49, 10, 42, -18, 25, -17, -56, 10, -36, -19, 40, -32, 59, -36, 5, -7, -41, -37, -19, -19, -10, -30, 0, -46, -3, -62, -1, 7, -23, -33, 0, -11, -15, -66, -19, -16, 51, 1, 54, -33, 21, 41, -17, -20, 28, -12, 1, -8, -20, 47, 31, -20, 45, -8, 22, -8, -51, 61, -54, 5, 40, -44, -13, 20, -19, -73, -21, -56, 5, -50, 49, 14, 40, -9, -22, 22, -29, -22, 48, 0, 3, 39, -44, 10, 19, -25, 12, 16, -26, 22, 2, 21, 35, -24, -22, -23, -37, 41, -52, -22, 0, 2, 28, 44, -22, 31, -13, -4, 9, 41, 24, -35, -44, 32, 20, -25, -31, 3, -7, 20, -41, -6, 14, 22, 17, -10, 42, 16, -6, 49, -14, 29, 1, -44, -25, 8, 52, -35, 24, -8, -26, 31, 12, 19, 19, -2, 44, -22, -38, -72, 53, -2, -33, 5, 11, 23, 15, 21, -46, 10, -19, 1, 28, 17, 39, 12, 9, 11, -4, -26, 30, 12, 48, 31, -18, 20, 9, 15, 8, 73, -20, 41, -5, -12, 17, 48, 27, 38, 0, -5, -8, 16, -1, -40, 28, 56, 6, -27, -9, 12, -40, -23, 8, -11, -34, -42, -18, -24, -15, 22, 41, 49, -19, -21, -18, 19, 56, 6, 42, -12, 18, 55, 34, -52, 59, -7, -13, -1, -87, -31, 42, -57, -3, -40, 33, 27, -21, -52, -20, -56, -24, 23, -6, -34, 61, 14, -37, -10, 22, 13, 5, 0, -52, -25, -16, -4, -31, 4, 33, 1, 27, -3, -2, -19, 10, 22, 36, -12, -4, -56, -31, -20, 39, 25, -39, -30, 5, 15, 2, -2, -27, -12, -2, -22, 20, 15, 3, 18, -1, 1, 35, -48, 6, 22, 8, 37, -22, -28, 40, -23, 44, 0, -21, -26, 28, -31, -78, -14, -7, -58, -8, 23, 1, -11, -7, 24, 25, 7, 34, 3, -20, 30, 35, 1, -7, 38, 6, -30, 50, -27, 2, -14, 31, -19, 39, -15, 33, -17, 0, 25, -36, -13, 23, 21, 10, 15, -7, 46, 34, -35, 13, 37, 20, -11, -19, -16, -1, 49, 6, -22, 31, 15, -19, -50, 14, -47, -23, -4, 30, -18, 26, -71, 41, 22, -43, 10, -25, 9, 17, 31, -6, 8, -37, 6, 19, -77, -21, 37, -24, -11, 25, 13, 1, -46, 31, -11, 20, 18, -9 ]
Morse, J. This suit was brought to recover damages for false imprisonment and assault and battery upon the plaintiff, alleged to have taken place on the night of August 6, 1885. Eice, at the time, was sheriff of Allegan county, and Fenn was night-watch of the village of Allegan. The arrest , occurred in the township of Monterey, in that county. Upon the trial it appeared that Fenn was requested by the sheriff to aid him in the arrest, and did nothing except as ordered by the sheriff. The chief indignity complained of was the handcuffing of plaintiff. Fenn put the handcuffs upon him by direction of the sheriff, who had in his charge at the time one Zeigler, who was arrested at the same time and place as the, plaintiff. ^The court instructed the jury that if Fenn knew that Eice was sheriff, and acted in obedience to his orders, and only upon his orders, in what he did touching the arrest, he would be justified in so doing, even though the acts of Eice were without authority, and their verdict, as to Fenn, should be no cause of action. “ Under the laws of this State, a private citizen is bound, upon the order of the sheriff, to assist in the arrest, and he is not authorized to wait to ascertain the authority of the officer before acting; and unless his act in itself is in some way wanton, and beyond what he is required to do, and thereby a trespass is committed, he will not be liable, and for that reason I give you this request.” The jury rendered a verdict in favor of both defendants. [The plaintiff alleges error in the charge of the court as above given. There was no error in this direction. It is admitted that Fenn did nothing in wantonness. or in njalice. He went to the house of Zeigler, where the arrest was made, at the request of the sheriff, and while there, under his direction, placed handcuffs upon plaintiff, and rode beside him in a buggy to Allegan. The ■court would have been warranted in directing a verdict in Fenn’s favor. The sheriff is authorized to call upon citizens to aid him in apprehending or securing any person for felony or breach of the peace (How. Stat. § 591); and, if any person so required to assist the sheriff neglect or refuse to ■do so, he is liable to punishment by fine or imprisonment (How. Stat. § 9250). We do not think that' a man called upon by the sheriff is required, at his peril, to ascertain whether the sheriff has a proper warrant, or whether the offense charged ■against the- person to be arrested is a felony, or that he may refuse to act until he is satisfied that the sheriff is acting legally, or within the scope of his office, in a criminal case. If he were allowed to do this, the object of the law would be defeated, and the statute rendered nugatory in many cases. There is often no time for inquiry, as action must be immediate. The necessity of the case will not. permit the person thus summoned to stop to examine papers, or take counsel as to the legality of the process in the officer’s hands, or to inquire whether any process is necessary in the particular case where his aid is required. .Therefore the person who responds to the call of one whom he knows to be an officer is protected by the call from being sued for rendering the requisite assistance. The officer may not be acting legally,' and therefore a trespasser;.but the person assisting him, at his request or command, and who relies upon his official character and call, is protected by the law, and must necessarily be, against suits for trespass and false imprisonment, if in his acts he confines himself to the order and direction of the sheriff. McMahan v. Green, 34 Vt. 69; Reed v. Rice, 2 J. J. Marsh. 44. The plaintiff and Zeigler were arrested for the commission of a statutory offense, under section 9168, How. Stat., which reads as follows: “Every person who shall willfully and maliciously break down, injure, remove, or destroy any dam, reservoir, canal, or trench, or any gate, flume, flash-boards, or other appurtenances thereof, or,any levee or structure for the purpose of conveying water to any such dam or reservoir, or any of the wheels, mill-gear, or machinery of any mill, or shall willfully or wantonly, without color of right,' draw off the water contained in any mill-pond, reservoir, canal, or trench, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year." The sheriff had a warrant against Zeigler, but none against the plaintiff. It is claimed by the counsel for the plaintiff that this statutory crime is not a felony, but a misdemeanor, and the circuit judge was requested to so instruct the jury, and to further direct them that, therefore, the arrest of plaintiff was unwarranted and illegal, as no lawful arrest could be made without process. The court refused to comply with this request, and charged the jury that the offense was a felony under the laws of this State. Under the statute and the previous decisions of this Court, we think that whenever a statute punishes an offense by imprisonment in the State prison, unless it is expressly declared by the statute to be a misdemeanor, such offense must be considered and treated as a felony, as regards the right of an officer to arrest without process. See How. Stat. § 9430; People v. Brigham, 2 Mich. 550; Shannon v. People, 5 Id. 71; People v. Bristol, 23 Id. 118; People v. Sweeney, 55 Id. 589 (22 N. W. Rep. 50); Drennan v. People, 10 Id. 169; People v. Donald, 48 Id. 493 (12 N. W. Rep. 669). The counsel for the plaintiff also claim that the sheriff, under the circumstances, had no right to handcuff the prisoners; that the same was an unnecessary indignity and an outrage; and that the plaintiff, by reason of riding handcuffed in a buggy for several miles over a rough and jolting road in the night-time, received injuries to his health and person, from which he suffered for a long space of time. And they complain of the charge of the court in this respect. The court was requested to direct the jury as follows: “If you find, from the evidence in this case, that the defendants put handcuffs on the plaintiff, and compelled him to go a long distance with them on, and that plaintiff in no way attempted to escape when arrested, and offered no resistance at any time, then I charge you that defendants would be guilty of assault and battery on the plaintiff, and would be liable to him for such an amount in damages as, under all the circumstances of this case, the plaintiff ought to recover. “When a person is arrested for the commission of a supposed crime, and is taken and held for trial or examination, as the case may be, the prisoner ought to be used with the utmost humanity, and at the time -of arrest, and during his being taken to prison, should not be fettered or handcuffed, nor subjected to any other hardships than such as are absolutely necessary for the purpose of safe-keeping and confinement under the arrest; and an officer is not justified in handcuffing a prisoner unless he is unruly, or attempts to escape, or is a notoriously bad character, or does something indicating a necessity on the part of the officer to restrain him by handcuffing. “ That the evidence in this case does not disclose any necessity for the handcuffing of the plaintiff, as it was done.” ' These requests were refused, and the court, in relation to this claim of the plaintiff, instructed the jury in the languag’e following: “Now, while an officer is bound to treat his prisoner with such kindness and humanity as may be consistent with security, and will not be warranted in employing any harsh- or unnecessary restraint, yet it is his duty to use such reasonable precautions as the case requires to prevent escape, especially in arrest for felony, or offenses of magnitude. His action, in this regard, is to be considered in the light of all the circumstances of the particular case bearing upon the question of what means are reasonably necessary to keep his prisoner secure. “I do not think, gentlemen of the jury, in this case, under the undisputed circumstances surrounding this arrest, as shown by the evidence, you would be warranted in holding the defendant Eice liable for any damages in this action, solely upon the grounds that the handcuffs were placed upon the plaintiff by his direction, and kept there until the jail was reached, unless you find that this was ordered without any view to prevent the escape of the plaintiff, or keep him in safe custody. “ If it was a wanton act, and done without any view to secure the plaintiff or prevent his escape, the defendant Eice would be liable for the damages resulting from the placing and continuing of the handcuffs upon the plaintiff.” The question of probable cause for this arrest was properly submitted to the jury, and from the undisputed facts of the case we are of the opinion that the sheriff was justified in arresting the plaintiff. It was represented to the sheriff by one William Dumont and his brother John, ■ who came to Allegan, and waked Eice up in the night, that the dam of the said John Dumont had been cut that night, and that the Dumont brothers had tracked two persons directly from the spot where the dam was opened to the house of John Zeigler. The Dumonts were old citizens' of Allegan county, and there was no reason why the sheriff should doubt the truth of the representations made by them; and a warrant was procured by John Dumont against Zeigler, and also directed against another as an unknown person. Hpon reaching the house, they found Zeigler and Fire stone in bed. The wet boots of Zeigler and the shoes of plaintiff were found at the house, and measured byDumont, who claimed that they corresponded exactly with the tracks. The pantaloons of both parties were wet around the bottom of the legs, and a spade was found inside the kitchen door, which appeared to have been recently used. The lower part of this spade was wet and clean, but upon the upper part of the blade sand was sticking, which Dumont informed Rice was in appearance like the sand of which his dam was constructed. Firestone was the only male occupant of the house-besides Zeigler, and there can be no reasonable claim, made, under these circumstances, that the officer did not have probable cause for taking him into custody. Having reasonable cause for making the arrest, the question arises, was the officer justified in handcuffing the parties?' We think the rule laid down by the circuit judge a. proper one. There must be some discretion reposed in a sheriff or other officer, making an arrest for felony, as to-the means taken to apprehend the supposed offender, and to keep him safe and secure after such apprehension. And this discretion cannot be passed upon by a court or jury unless it has been abused through malice or wantonness or a reckless indifference to the common dictates of humanity. It must be found that the officer was-unnecessarily rough and inhuman in his treatment of the person arrested, and without any view to prevent the. "escape of such person. It is, not necessary, as claimed by the plaintiff’s counsel, that the prisoner must be unruly, or attempt to escape, before he can be handcuffed, or do anything indicating a necessity for such restraint. Nor, in the event that he does nothing; at the time of the arrest, in the way of attempting to escape, or resisting the officer, is it necessary that he should be a notoriously bad character in, order to justify the tying of his • hands. There may be other and sufficient reasons, as it seems to me there were 'in this case, why such extreme measures should be resorted to in order to secure and safely lodge the prisoner. In this case there was evidence tending to show that the sheriff was informed that these men, Zeigler and Firestone, were " slippery ” and desperate men. He did not know either of them personally, and had no information, save what he received from the Dumonts that evening, as to their reputation and character in the community ; and he had no time to make inquiry. The arrest was made in the night, at a late hour,- under the supposition, if not made then, that the persons sought or at least the plaintiff, might escape apprehension altogether, or only be captured after much hunting and expense. The night was dark, and the country wooded. The parties had to be taken about 80 rods, along an old winding wood road, to the buggy, every foot of the way opening and inviting an opportunity to escape.' From there to Allegan was a night drive, with two officers and two prisoners. There was no evidence of any harshness upon the part of the sheriff or Fenn other than the placing of the handcuffs upon Zeigler and plaintiff. The plaintiff made no complaint at the time There is nowhere in the whole record a single instance tending to show malice or wantonness on the part of the sheriff. There is absolutely no evidence ^tending to show any ill will, or even a malevolent impulse, of the sheriff towards plaintiff or Zeigler. s It appears, from the testimony of the, sheriff, that, upon the same day of this arrest, -a prisoner had broken away from him in the day-time in the streets of Allegan, causing him some effort and trouble to recapture him. It is plainly apparent that in this case the sheriff put the handcuffs upon plaintiff for no other purpose than to prevent his escape, and that he had good reason to believe it was necessary to do so. That it turned out afterwards that the plaintiff was innocent of any offense, was neither a “slippery” nor desperate character, but an inoffensive and reputable citizen, and that he never had the remotest idea'of trying to escape, cannot alter the rule which saves the sheriff harmless from an act which appeared, at the time it was done, to be both necessary and reasonable. The arrest of an innocent man is an indignity hard to be borne, and the tying of his hands with cords or irons is something that makes the blood run chill to contemplate ; but both are indignities ofttimes without redress, and a necessary consequence of the due administration of justice in the suppression of crime. An officer is bound to act humanely, and cannot lightly and without reason either arrest or harshly treat a supposed offender, be ho innocent or guilty. It is, no doubt, true that petty officers, too often unduly inflated by a too high conception of their office and authority, are inhuman and cruel in their treatment of suspected persons. Such conduct the law does not hesitate to punish. But to mulct the sheriff, under the circumstances of this case, in damages for handcuffing the plaintiff while conveying him, on a dark night, through the woods, to the village of Allegan, when he had good reason to suspect him to be guilty of a felony, and one likely to escape at the first opportunity, when it - was done neither in recklessness, wantonness, nor malice, would be to put in peril every officer of the law who, under like circumstances, was alert and vigilant in the performance of his duties in the arrest of supposed criminals. The hardened and skillful offender against the criminal laws is sometimes, and generally, the meekest when arrested, but his eye is open to every avenue of escape and to say that unless such person attempts to escape, resists arrest, or is known to the officer to be a notoriously bad character, he cannot be shackled for an hour or two, until he can be conveyed to a place of safety, is to lay down a rule which will make escapes easy, and place new obstacles in the way of the apprehension and .safe-keeping of offenders. The sheriff cannot stop, when the man is unknown to him, at the moment of arrest, to inquire into his character, or his intentions as to escape, or his guilt or innocence of the offense charged against him. His duty is to take him, to safely keep him, and to bring his body before a magistrate. If he does this without wantonness or malice, it is not for a jury to find that his precautions were useless and unnecessary in the light of after-acquired knowledge of the true character and intent of the accused,- and to punish the sheriff in damages for what honestly appeared to him at the time to be reasonable and right. Several assignments of error are made to the ruling of the trial judge upon matters of evidence, but we find no merit in any of them. The statements made to the sheriff by the Humont brothers, both before and at the time of the arrest, were material and competent, bearing upon the question of probable cause for making the arrest, and also upon the reasonableness of the act of the sheriff as to the use of the handcuffs. It was also proper for the sheriff' to testify that he believed such statements as bearing materially upon his good faith as to both of these matters. "We find no error in the record, and the judgment must be affirmed, with costs. The other Justices concurred.	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Campbell, J. The Attorney General filed his information in the nature of a bill in equity to restrain the city of Detroit from discontinuing the Central public market in that city. The court below, upon an answer not controverting anything material in the information, dismissed the bill, but we are not informed whether this was done for a supposed lack of authority in the Attorney General, or for want of equity. Both of those questions were argued. The Attorney General appeals. There can be no doubt of the right and duty of the Attorney General to intervene and prevent franchises of a public nature from usurpation or from destruction. That holding a public market is an important public franchise is an elementary principle of law. In Rex v. Marsden, 3 Burrows, 1812, it was doubted whether an information ought to be granted in favor of a private owner of such a franchise against usurpation by another private person, because there were other sufficient remedies; but it was recognized that the public interests might be protected by that process. And in Rex v. Starkey, 7 Adol. & E. 95, it was held an offense punishable criminally to remove a market to the detriment of the public, as it may be actionable to do so in some other cases. Ellis v. Bridgnorth, 15 C. B. (N. S.) 52. The nature of these public interests will be considered presently. There is no doubt of the right of the Attorney General to intervene. The remaining questions relate to the mischief that is sought to be prevented and redressed. The most convenient method of explaining this will be to give the legal history, — of which we must take judicial notice, — in connection with the facts which explain it. From the time of the hrst city charter in 1806 — and perhaps still earlier — there has never been a time when the city of Detroit has not been at least authorized, if not required, to maintain public markets. For a large part of this period the appointment or election of market clerks has been obligatory, from which we might be bound to infer, what this record shows, that one or more public markets existed from the earliest period. Prior to 1833 the public market place, which included also a market building, is known historically, and probably from various public uses to which it was put may be known judicially, as having been situated between Jefferson avenue and Detroit river, on Woodward avenue. At least one other market was described by territorial legislation, which need not now be referred to In 1833 — no doubt from the necessity of more space— the question of the location of the Central market was submitted to a vote of the citizens of Detroit at a regularly called citizens’ meeting. The selection of a location was between Woodward avenue, below where it then was, and Michigan Grand avenue (lately renamed Cadillac square), where it now is. Inasmuch as these streets are described in our statutes, we know that Woodward avenue was 80 feet narrower than Michigan Grand avenue, and it appears that the extent of the latter made much more room for a market than the other would have furnished. It was decided'at that meeting to have the market on Michigan Grand avenue. A building was erected, fronting on the Campus Martius, at the head of that avenue, for the combined' uses of a city hall and market, extending along the middle of the avenue originally about 100 feet. The lower story was used for meat-stalls. Vegetables were sold in an open building not much sheltered except by a roof extending back in the avenue from the brick building, and the country wagons for the sale of market products were gathered along the avenue for some distance further. In process of time the buildings, both open and closed, were carried along so as to occupy the central part of the avenue to Kandolph street, except as crossed by Bates street. In this way the whole of the avenue along its middle portion was made a market place, sometimes called the ££ City Hall Market/5 and sometimes the ££ Central Market.55 From the repeated litigation which has come into this Court, we may infer that it was to avoid vexation from adverse interests that in 1848 it was deemed desirable to formally vacate the middle 50 feet of Michigan Grand avenue through its entire length, and, in addition to action by the council, to obtain a condemnation under the right of eminent domain, and the jury of inquest rendered a verdict in favor of such vacating. From that time to the present the city has occupied and claimed the whole space by title in fee, and used it for market purposes. Whether the fee then really belonged to the city ceased to be a practical question after the lapse of time, which was sufficient to bar any adverse right. In Cooper v. Detroit, 42 Mich. 584 (4 N. W. Rep 262), when the city of Detroit proposed to build the Central market building referred to in the pleadings before us, as a part of the Central market system, it was claimed by the bordering land-owners, who desired to prevent it, that this long occupancy for market purposes was not proprietary, and was not, therefore, effective. But it was held by this Court that such an occupation was proprietary, and therefore protected by the statute of limitations. It was urged on the - argument of the present case that, when we declared the right to be proprietary, we in effect held that the city could do as it should choose to do with its property. But under the common law it was the general doctrine that no one could hold a market that did not own the freehold of the land, and, if the public have any rights in the matter, we think the fact of city ownership cannot be of any importance in limiting them. While there may be a great deal of property owned in fee by a city, and its rights may be proprietary, yet all these rights belong to the municipality as a public corporation; and it is by no means inconsistent with the title that there may be trusts or obligations in regard to them. It appears from the bill that in 1872 the city took down the brick buildings fronting on the Campus Martius, and left the whole space open from that place to Bates street. The whole strip from the Campus to the other end of the avenue had been, in 1848,' declared by the council to have been vacated for market purposes, and designated and set apart as a public market to be known as the “ City Hall Market." No attempt was ever made to put an end to that designation of uses, although it is quite possible that the delay in rebuilding may have been in part owing to a desire — such as is now manifested — to turn the market into something else. But the chief reason was, no doubt, the large expenditure for a new city hall in place of the old market building. In 1875 authority was obtained from the Legislature by special act to raise money for a new market building by borrowing money on market bonds. As the immediate occasion of a part of this complaint arises out of an alleged violation by the city of the conditions then imposed by the Legislature, it will be necessary to refer to it particularly. The act not only imposed condition on the loan, but also directed what use should be made of the building when completed. Laws of 1875 (Local), p. 537. By this statute the common council received authority to borrow not more than a hundred thousand dollars, on bonds pledging the faith of the city. These bonds were to be denominated “Central Public Market Stock of the City of Detroit.”' They were to be in sums not less than 1500 each, to bear not more than 7 per cent, interest, and not be sold at less than par. They were to be payable not more than 20 years from date, and their proceeds were to be credited to the “Central Public Market Fund” and— “ Applied exclusively to the purposes of erecting a Central public market in the city of Detroit.” The law further provided that “ the rents,1 fees, and profits derived from the said Central public market” shall be applied— 1. To payment of interest coupons, and to establish a sinking fund to provide for the payment of the bonds, for which purpose $5,000 should be annually invested in the said sinking fund. 2. To market expenses and repairs. 3. The bonds were to be made payable $5,000 in each year from issue, “ and the same shall be paid from the money provided for in said sinking fund.” The law then declared in regard to the use of the building that one story should be set apart as a free public hall and for city offices. In 1881 the law was so amended as to substitute court-rooms for the public hall. Law of April 21, 1881. No subsequent action has been taken by the State Legislature on the subject. There is no force in the suggestion that the new or amended charter contains room for a different financial scheme. The frequent and careless revision and re-enactment of charters for Detroit has led to a good deal of confusion, but it cannot be assumed that the re-enactment or modification of charter provisions is intended to affect special legislation outside of the charter without a very manifest indication of such an intent. This is especially true where such an interpretation would affect important rights, and diminish funds set apart for specific uses. Under this enabling act of 1875, the city built the new, building on the site of the old market building known as the “City Hall,” and issued bonds, of which between twenty and thirty thousand dollars have not yet matured, but have been purchased for the city, and placed in its general sinking fund. The city seems to have failed in its duty to keep up a separate market sinking fund. On March 6, 1888, the common council 'accepted a committee report, subsequently put into resolutions and ordinances, abolishing the Central market, vacating the market buildings and open spaces as used for market purposes, and directing the disuse for such purposes after July 1, 1888, and providing for the use of the new building for general city purposes. This is the action which the Attorney G-eneral has brought to our attention, and which he asks us to restrain and set aside. - * On the argument for the city an attempt was made to treat this building as the entire market, and to claim that it was insignificant for market purposes. And in the same line of argument it was insisted that for market purposes the income would be insignificant, and that; being the private property of the city, there was no reason why the city should not treat these sinking fund bonds as paid, and use the building as it chooses. The other property was referred to as having no part in this controversy, and as not protected. Whether the building stands alone or not, there can be no doubt that the law positively requires it to be paid for out of market revenues, and not by taxation. It may be true that the city would be obliged at maturity to pay the bonds at all events, whether receiving income enough or not. But it is equally true that it would be a fraud on the tax-payers, and a violation of the act of the Legislature, to relinquish the fund set apart for that purpose, which was made a trust fund, and charge its value as a general city charge. The power to pay these bonds by taxation was not meant to be granted unless the other means failed ; and if it should become necessary to resort to it, that necessity can only arise from the direct breach of duty of the council, which has no right to squander or throw away the public funds. The argument that the bonds are actually paid is fallacious. The city sinking fund is in law a fund which has value in securities, and the market bonds are as much property as if they were government bonds. They can only be exchanged for actual money equivalents. A cancellation of these bonds would be a withdrawal for market purposes of the same amount of funds belonging to other purposes. The fact that the city has not in fact kept the market sinking fund distinct can make no difference. It is bound to keep it untouched, and, if funds have been diverted, the city is bound to restore them where they belong. Until the Legislature shall see fit to provide otherwise, there can be no step taken to use the trust property for other purposes, without a direct violation of legal duty, and it cannot be allowed. It may be further noted that the Legislature has provided expressly for the occupation of the whole building, which would not have been done had there been any design of leaving the city liberty to use it at discretion. In the original act the upper stories were allowed to be used for a public hall and city offices. In 1881 the use was modified so as to substitute court-rooms for the hall. This, of itself, shows the city was intended to have no discretion about the market uses. But it is manifest that this building was not designed to be separated from its surroundings. It would be little, if any, short of absurdity to suppose that this legislation ■contemplated nothing more extensive than a small meat- shop. While that might in some cases be treated as a market, it would be a very narrow use of that word, and bn so small a scale would involve nothing of a real public character. It is probably true, as counsel suggested, that the entire range of stalls apart from their surroundings, would not rent for enough to justify the outlay in building. And it is also reasonably certain that they would not be of much public convenience. But this building was placed by the city, and was no doubt understood by the Legislature, as headquarters of a large existing public market, which would be somewhat imperfect without meat-stalls, while meat-stalls would be of little profit aside from the ordinary market customers. The city, until the recent action, has always kept them, identified, and they cannot be dealt with separately without violating good sense, as well as destroying the essentials of a public market. ■ It has already been suggested that a market is an important public franchise. Perhaps if the city had never kept up a market, there might be some doubt whether a court could by civil proceedings interfere to compel it. But the charter contains many provisions not suited to a city without markets, and requires some officers to be chosen who, in such a case, would have no duties. And the city has had the benefits of this franchise for three-fourths of a century, and continually acted under it. All franchises are given for the purpose of securing some advantage to the public, and, when once exercised,, the public have very generally a right to complain of their relinquishment; and reference has already been made to the criminal quality of a destruction of such public interests. Markets aré as old as civilization, and public market places have in many countries been identified with the-most important events in their history. The purpose of markets has always' been to secure to all persons the privileges and conveniences arising from a general concourse of . buyers and sellers. One main object is to enable producers to meet consumers of the usual necessaries of life directly, and -without the interference of middle-men. The charter of Detroit has always contained authority to prevent forestalling and regrating, and the city has always had ordinances on that subject, which have no place in the absence of market facilities. Freedom of access to farmers and gardeners and all'other persons having provisions and the like to sell, so that purchasers may get supplies directly from them, as well as find all the different varieties of supplies in the same place, is regarded as an important legal right which should not be interferred with. The other chief value of markets is the facility of regulation and inspection, which cannot exist very perfectly, if at all, where there is no central place '•of concourse for buying and selling. The acceptance of the franchise involves the duty of using it to the public welfare and utility; and, when the rights of the public have once become vested in such a franchise, something more than municipal caprice must exist to change or destroy it. In a market the producer of articles, however small in value, can find a chance to sell them for all that they are worth; and those whose products would not justify them in setting up places of business can have the same liberty of trading as any one else. The destruction of a market means the destruction of many of the small producers, who have no other means of gain or livelihood. Courts have nothing to do with the theories of economists. The law of the land has always favored, and probably always will favor, the protection of both buyers and sellers against such practices as will prevent' either from escaping the mischiefs of monopolizing provisions. Public markets have always served this purpose, when prope'rly managed;, and they are the only means' whereby small dealers in such articles can dispose of them to full advantage. This, as before stated, is legally recognized as such a public right that, when once vested, it cannot be capriciously destroyed. There are few cities in the United States that do not owe-much of their business prosperity, and much of their enterprise, to the energy and thrift of citizens who began, and have sometimes kept up their active career in the public markets. The city of Detroit is greatly indebted to men and women who have been connected with this very Central market. A large share of the magnificent endowment of Harper hospital came from the invested earnings of a vegetable stand there, where the keen, honest face of Nancy Martin was seen daily until age and infirmity withdrew it. In the case 'before us the law has expressly saved this-market from being meddled ,with until the bonds have all been paid in due course of maturity out of the sinking-fund set apart for them. The duty of maintaining the market out of the revenue not set apart for the sinking-fund is quite as explicit as the other. And the market contemplated to be kept up is the market as an entirety, and not the meat-shops, which form but a part of it. That a city may change the location of markets, where-it will not injuriously aifect public rights, is very generally accepted. That it cannot capriciously destroy them,, unless the charter gives distinct power to do so, seems to be a necessary inference from the general rules governing the use of franchises, which are seldom, and in cases of' public enjoyment are never, given as mere sources of revenue without regard to the public convenience. We are saved the necessity of considering these questions by the terms of the city charter, and by the law under which this market fund was authorized, and which created specific duties which appertain to the conditions of the- loan, as well as to tbe immunity of citizens from taxation to meet the payments on the loan, when it can be met out of the income of the market. . There is not very much American law on the subject of markets. Their general conditions have so generally remained unchanged that the old usages have been followed without controversy. There are few, if any, popular institutions so universally retained, and few -that have served a better purpose. The law, as found in the standard text-books and digests of the older authorities, stands practically unaltered in any feature of public utility. See Bac. Abr. “ Fairs and Markets Com. Dig. “ Markets f 1 Bl. Comm. 274; 3 Bl. Comm. 218 ; 2 Co. Inst. 220, c 31; Townend v. Woodruff, 5 Exch. 506 ; Toml. Law Diet. “ Market ;" Rex v. Burdett, 1 Ld. Raym. 149. Since the argument our attention has been called to a very recent decision in the case of Fazende v. City of Houston, 34 Fed. Rep. 95, in which the facts were almost literally identical with those before us, except that the suit was brought by a private bondholder ; and the court held as we hold, that the city could not change the use of the property, or divert the income of the fund. It does not appear, as no testimony has been taken, why the common eoiincil was induced to resort to the measures complained of. They involve a complete throwing away of valuable income yielding property, and a plain violation of the vital conditions imposed by the law authorizing the market loan. The Attorney General has only done his duty, and the mischief threatened must be stopped. The decree below must be reversed, with costs of both • corn’ts, and defendant must be enjoined from interrupting the use of the market property, or any part of it, or any of the buildings heretofore used for market. purposes, and directed to continue to maintain. the market as such, and collect and apply the income for the purposes required by the statute of 1875, as amended by the law of 1881, and in no other way. Sherwood, O. J., Champlin. and Morse, JJ., concurred. Long, J., did not sit.	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Campbell, J. Plaintiff sued and was allowed to recover on a written contract for building a bridge over Belle river,'purporting to be made with Patrick Kelley, commissioner of highways. The contract included the abutments or piers, the trestle-work and approaches, and the material. This contract, which was dated and approved by the town board July 24, 1883, provided for the completion of - the work by September 25, 1883, for $614. Any delay involved a forfeiture of $200, and made plaintiff liable for damages. The place where this bridge was to be built was on a newly-projected highway, at a not great distance from the old highway and bridge to be superseded. It would seem that the new highway was not worked, and was probably meant only to be used in case of the completion of the new bridge. When plaintiff got his work done, as he claimed, the town authorities refused to accept, and never did accept it. The bridge remained unused, and the access to it was not made available, until about midwinter, when the whole structure was swept out during a freshet. It was claimed, and the evidence tended strongly to show, that the work was not done properly, and that both material and workmanship were bad. ■ In the view we take of the case these questions need not be considered. There was never any acceptance or use of the bridge, and plaintiff’s rights, whatever they may have been, were under the alleged contract It appears from the record that the highway commissioner was anxious to have a bridge at the new location, and that he wanted to bring its cost within what he .supposed to be his power to expend, $1,000, out of which he had ■ already laid out a considerable sum, leaving a margin of only about the sum fixed in this contract. He talked the whole matter over with Mackey, who was informed what he wished 'to do, and for how much, and Mackey was entrusted with the drawing of specifications. There^ «pon bids were advertised for, and Mackey’s was $135 lower than any other, and $235 lower than the highest. His bid was accepted by the commissioner, and the contract was let without security. The law is positive that no such contract can be let without— “Good and sufficient security for the performance of the work.” How. Stat. § 1414. There is no doubt that the specifications, fairly considered, entitled the town to a well-made work of good materials, and bidders generally must have bid on that basis. It is shown quite plainly that Mackey measured the quality of his work and materials by the low price at which he contracted, and we doubt whether, if the contract had been valid, any recovery could be had on the facts. Since townships have been made liable for defective bridges, it would certainly be wrong for town officers to resort to cheap and poor work to avoid' expense, and if a bridge cannot be had within the general power of the •commissioner, it ought not to be built without procuring the necessary authority to raise money enough to build a •safe one. We are not authorized to impute fraud in fact to any of these parties, but no more effective means to enable fraud to be practiced could be found than such as appear here. Mackey was given exceptional facilities. He knew just how much money there was to expend, and made his specifications and bid accordingly. He seems to have felt justified in measuring the quality of his material by the standard of his pay. The other bidders had no knowledge of these things, and bid on what appeared upon the face of the papers. Had this bridge been accepted, and the acceptance been followed by some accident due to bad materials, the consequences to the township would have been 'unfortunate, and the lack of security would have involved direct loss. We have had occasion several times to hold that all persons dealing with public corporations are bound to make their contracts according to law, and will not be protected unless they do so. This case illustrates the necessity of such a rule. The doctrine was applied under the statute applying to townships, in Mackenzie v. Treasurer, 39 Mich. 554. It had already been held, in Detroit v. Paving Co., 36 Mich. 335, and in Detroit v. Robinson, 38 Mich. 108, that there could be no liability against a municipality upon contracts not made in conformity with the statutes. And in Niles Water Works v. City of Niles, 59 Mich. 311 (36 N. W. Rep. 535), the law was laid down strictly on the same principles. It is the only rule which can be relied on to prevent fraud and collusion. Contractors have ample means to protect themselves, and if a township can be held on implied contract, or estopped by the acts of its officers, when there is no valid contract, it would enable these persons to disregard the law entirely, and collude with their friends to do indirectly what, if directly done, would be a plain illegality. As the rule has been uniformly settled in this State, we- need not discuss it further. No better example to show its necessity could be found than appears in the record before us. No cause of action was made out, and there is no theory which could sustain the action. The judgment must be reversed, with costs of both courts. Sherwood, C. J., Champlin and Morse, - JJ., concurred. Long, J., did not sit.	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Campbell, J. This case, as presented in this Court, comes up to review the action of the circuit court for the county of Wayne, had on an appeal from commissioners on claims against the estate of Hiram M. Perrin, deceased. The circuit court directed a verdict for the estate. Judge Yerkes, the claimant, presented two items of claim before the commissioners. One was for the value of one-third of the southerly two and one-fifth acres of lot 48, Porter farm, Detroit, included in Id. M. Perrin’s subdivision of outlot 48, and part of outlot 49, George B. Porter farm. The other was for one-third of the proceeds of sale of certain lots included in said plat; being lots 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, and the lot lying south of said lot 26. The claims demanded, respectively, $3,000 :and $2,000, and interest; without specifying date or other •elements of the causes of action. The second item is the •only one urged. This claim was demurred to as not maintainable without showing and trying title. The circuit court allowed the claim to be tried. The statement in the claim filed throws no light whatever on the origin or nature of the claim. As far as it means anything, it means that Perrin had received $2,000 as the proceeds of the sale of one-third interest in the lots mentioned, belonging to Yerkes; but whether sold or received •as attorney, agent, or otherwise, the claim does not indicate. We do' not think any case Avas made which could go to the jury. Hpon the argument, the ground of the .•claim seems to have been, in substance, that, several years before 1861, Yerkes had an arrangement with one Frazer for an interest in this property; that by some .mutual arrangement it Avas bid off by Perrin, in February, 1861, on a sale in foreclosure proceedings, to which all these were parties; and that subsequently Yerkes paid Perrin his share of the money needed. This whole transaction is so shadowy as to convey from the papers in the cause no definite knowledge. But it is enough to say that Perrin’s purchase is now relied on as a source of title, and that it was on its face so made as to vest in Perrin an absolute title. The plat, which is also relied on, was made by Perrin alone, with his wife, immediately after the purchase. This being so, it came very clearly within the statute declaring no resulting trust to arise from the purchase in one person’s name at the expense of another; and such a title could only be made subject to rights in other persons, either by some executory contract, or some valid declaration of trust, either of which must have been entirely in writing, and signed by Perrin. There is no letter or other paper showing, or tending to show, the terms of any agreement whereby Perrin was to buy this property for the benefit of Yerkes, or on what terms. The only papers in the case which identify the property as in any way concerning Yerkes are certain letters, only one of. which contains anything like a ■definite description, and neither of which can, on the most liberal construction, be construed as a declaration of trust. On April 25, 1861, Perrin wrote to Yerkes as follows: “ Jas. Frazer has not paid to me anything more than was paid by Mr. Hawley on the Porter-street property since the sale, February 5. Will it be possible for you to pay for me at Mich. Ins. Bank the amount of money that will be required on your interest in said tract by the-fifth of next month? I have a note falling due then that must be paid somehow, and I cannot collect money here at present. Please answer this, directing to me at Ypsilanti, upon receipt.” The answer of Yerkes does not appear, except as it is-referred to in a letter from Perrin to him of May 2, as follows: “ Yours of April 29, directed to me at Ypsilanti, reached me at that place, saying that the money would be ready for me when called for. You have not yet informed me-to whom you would have the deed made. Another thing I have thought to be best, which is to have a divided interest, instead of an ‘undivided/ so that each can look after and dispose of and otherwise control his own. I have thought perhaps it would be as well for me, upon closing up all that I may do about passing titles to the parties that I purchased at chancery sale, to have all that I finally own in one patch. Perhaps if you and Frazer are interested in fixing, you and he may make some arrangement where each would be located on the tract, so-as to leave my interest in one lot or parcel. This, however, may or may not affect the payment of the money by you, as we can fix that satisfactorily afterwards, if my neck is not broken to pay my notes at bank, Will you please do me the favor to deposit the money in Mich. Ins. Co. Bank to credit of my account, that I may check for it to pay my note? And ¡Dlease write me how you will have the deed pass, or to whom it shall be made. As I now understand it, you will be entitled to a deed, in clearing up this thing, to one-third of the southerly two-acres, and one-fifth (2 1-5) of lot 48. I shall be willing* if it please you and Frazer, that you shall be located on the- extreme southerly portion of the tract, although that will perhaps be more valuable, as it will be a little nearer the city.” On May 6, 1861, Yerkes answered this letter, as follows r “ Your favor of May 2 was received by me this morning. I have waited all day to see Frazer, and make a last, effort on him; but find out to-night that he has been absent in the country for near a week. I will deposit to-morrow (I can’t get into bank to-night) $192, the amount of my share, to your credit, as you desire, and take your note for the amount, until I can find a purchaser. I will make this all right with you when I sen you. You understand that I am not purchasing, and the-reason therefor.” There are some more recent letters indicating that Yerkes had some interest in the property which may,possibly have been this, but- none showing what that interest was. It has been uniformly held in this State that the statutes are not complied with except by a contract or declaration of trust signed by the party, and needing nothing-outside of the papers to show the entire arrangement. It is manifest, from this correspondence, that Perrin’sletter of May 2 refers to some arrangement, • written or unwritten, whereby Yerkes and Frazer were, upon some-terms not mentioned, to have a third interest in a part of Perrin’s foreclosure purchase. It does not appear what the rights were as between Frazer and Yerkes, or how much money was to be paid by either or both of them irin clearing up this thing.” The letter in reply from Yerkes, while it mentions $192 as his share, does not propose to make it a payment, but as a loan to Perrin, which was to be rectified by subsequent arrangement, which does not appear. While it may be inferred, ,by guessing from circumstances and parol evidence, that Yerkes became in some way entitled to some interest, there is no writing, by way of contract, declaration, or otherwise, executed under Perrin's hand, and signed by him, whereby Yerkes is shown to have had a third or any other interest, or on what terms he was entitled to obtain it. This being so, no case was made out, and the court below properly charged the jury. The judgment must be affirmed. The other Justices concurred Counsel for appellant contended that no particular formality is required or necessary in the creation of a trust; that it may be by an express declaration, or by any informal memorandum; citing Bellamy v. Burrow, Cas. Talb. 97; Fisher v. Fields, 10 Johns. 495; Corse v. Leggett, 25 Barb. 389; Urann v. Coales, 109 Mass. 581; or by letters; citing Foster v. Hale, 3 Ves. Jr. 696; Montague v. Hayes, 10 Gray, 609; Kingsbury v. Burnside, 58 Ill. 310; Loring v. Palmer, 118 U. S. 321; or by a pamphlet; citing Barrell v. Joy, 16 Mass. 221; or a receipt; citing Faxon v. Falvey, 110 Mass. 392; or a deposition or affidavit; citing Pinney v. Fellows, 15 Vt. 525; or a recital in a bond; citing Gomez v. Bank, 4 Sandf. 102; or in a deed; citing Wright v. Douglass, 7 N. Y. 564; or an answer in chancery; citing Patton v. Chamberlain, 44 Mich. 5, and cases cited; in short, by any writing in which the fiduciary relation between the parties can be clearly read; citing Perry, Tr. § 82, and cases cited. Nor is it necessary that such letters, memoranda, or recital should be addressed to the beneficiary, or should have been intended when made to be evidence of the trust; citing Perry, Tr. § 82; Browne, Stat. Frauds, §§ 88, 109. Counsel for defendant cited Bumpus v. Bumpus, 53 Mich. 346;, Weare v. Linnell, 29 Id. 227; Linsley v. Sinclair, 24 Id. 382; Hooker v. Axford, 83 Id. 457; Groesbeck v. Seely, 13 Id. 329; Newton v. Sly, 15 Id. 396.	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Dethmers, J. Plaintiffs appeal from an order granting defendants’ motion to dismiss plaintiffs’ bill of complaint for failure to state a cause of action. Plaintiffs are property owners and residents of a rural area which their bill of complaint describes as being a residential, farm and farm residential vicinity, a pleasant and congenial neighborhood with attractive residences and a fine place in which to bring np children. Defendants also are property owners in that locality. This suit is brought to enjoin them from conducting an automobile wrecking and junking business on their property, as they are licensed by the secretary of State and have started to do. The pertinent portion of plaintiffs’ bill of complaint reads as follows: “14. That the said use of said premises constitutes a public and a private nuisance and that the intended further use of said premises will constitute a public nuisance and a private nuisance as follows: “A. That said automobiles are stored in full view of all passersby and neighbors and are and will be attractive to small children and that they will have broken glass, sharp edges, holes to trap small feet, afford havens and refuse that attract and harbor rats and mice; “B. That other wrecked automobiles and derelict and decomposing bodies will be constantly hauled to said premises and the trash and refuse therefrom will be hauled away from said premises; that the sight of said old, wrecked, discarded, dismantled, junked, beaten and mangled automobile bodies, in which people have died and been maimed, and the piles of junk, old metal, steel, iron, trash, upholstery, rubber tires, broken glass on said premises, and being hauled away therefrom will and cannot help but operate as a constant reminder of dirt, filth and death, and have a depressing and morbid effect upon the minds of the average and ordinary person in the community, and especially upon the minds of plaintiffs, their neighbors, families, guests, roomers and tenants and impair their nervous system and weaken their physical force and resistance and subject them to fear, dread, horror, annoyance, discomfort and distress; * # * “D. That there are 12 children under the age of 9 in the immediate vicinity of which 10 are of preschool age and of which 6 will share boundaries with the junk yard; that said children will be attracted to the derelict automobiles and the junk and to fires that occur and spring up on the premises as well to^ the acetylene torches, cutting and mechanical operation of a junk yard and auto dismantling and to the huge trucks used to haul away junk and bodies and to cranes and weights which at a future time may be used to break and smash the automobile bodies remaining after parts have been stripped and burned from them; that said operations are dangerous and children may be cut, hurt, mangled or killed as well as bitten by rats, mice, mosquitoes, dogs, cats and fleas, and the germs of disease that are harbored in said animals and vermin; “E. That it is necessary for junk yards and auto dismantling establishments to burn the upholstery, rubber, pasteboard and plastics that are attached, glued, cemented, riveted, sewn and stapled to automobile bodies as well as the tires and other inflammable parts of said bodies; that the burning of said bodies gives off rank, odiferous, obnoxious, harmful, sickening and searing fumes and gases filled with soot and carbon, that will blacken and stain washes, farm produce, plants, grass and lawns and contaminate the air of the countryside; that the cutting by acetylene to reach parts and separate them often causes fires where none are intended or wanted, burning the nests of vermin, gasoline fumes remaining' in the tanks, rubber, upholstery and plastics and other materials, sometimes causing grass fires and spreading to other automobile bodies leaning and located next to' the burning body; that gasoline in the fuel tanks explodes with a loud report; and danger to the 3/1" 63 J • “F. That the customers of an auto dismantling establishment as well as many of the employees are persons dealing in junk and filth and refuse seeking parts for junk cars they seek to repair and fix; that said persons are often derelicts, transients and undesirables, driving vehicles in disrepair that are noisy and without proper mufflers; that the trucks that haul away junk and broken bodies are old and dirty and disreputable, that said persons are and will be attracted to and employed in said establishment and frequent the neighborhood which is presently quiet, neat, clean and residential; that the plaintiffs will be afraid to have their children in their yards, unable to use their yards for picnics and their windows towards said yard; and will be unable to open them without admitting foul odors and stenches ; “G. That said place will give off foul odors and vapors of decaying rubber, rusting metal, mouldy and soggy upholstery, as well as rags and junk; that the piles of junk and waste metal and other items will contain other foul and odiferous items including the dead and decaying bodies of vermin containing the germs of disease; “H. That the cutting and smashing of bodies, the hammering of parts, the breaking of metal, the tearing and ripping of steel, the noise of huge trucks being piled with old metal and hauling it over the rough countryside; the dumping of wrecked auto bodies and piling and dismantling of them will disturb the vicinity interfering with the neighbors and the use of their property as well as their peace of mind; * * * “17. That the maintenance of a junk yard and auto dismantling operation in the midst of plaintiffs’ residences would jeopardize their health, would cause them to become depressed, would prevent them from enjoying their homes in peace, quiet and comfort, would impair the marketability of their properties and result in a depreciation of the value thereof, and in a diminution in the rental value thereof, would materially interfere with the plaintiffs’ use of their property, would cause great and irreparable injury.” At the hearing on motion for an order to show cause why a temporary injunction should not issue, some testimony was taken, limited to showing the character of the neighborhood. The motion to dismiss is supported by affidavits to the effect that de fendants are licensed by the secretary of State to-conduct an auto salvage business at that location, that their business operations in that connection, to-date, consist solely of preparing the premises for the intended purpose and the purchase of 4 used automobiles and parking them there, and that the area is. not essentially residential. No other testimony was. taken and the ease was never tried. The court’s opinion, in finding that the bill of complaint does not state a cause of action, contains the-following: “The bill is founded on the premise that an auto, salvage yard in this location will necessarily be an actionable nuisance and should therefore, be enjoined. * * * “Defendants’ motion to dismiss is based upon the-proposition that a lawful business should not be-enjoined unless and until an actionable nuisance-exists, that the bill alleges only anticipatory invasions of plaintiffs’ rights and should be dismissed as prematurely filed. * * * “Plaintiffs cite and rely on a line of authority which holds that a court may restrain and prevent the establishment of a lawful business in a strictly residential area, if such business will necessarily result in a nuisance. Barth v. Christian Psychopathic-Hospital Ass’n, 196 Mich 642; Saier v. Joy, 198 Mich 295 (LRA 1918A, 825); Birchard v. Board of Health of the City of Lansing, 204 Mich 284 (4 ALR 990). “Defendants rely on the rule that a court will not enjoin a lawful business on anticipatory allegations- and that such businesses should be regulated only and actual nuisances, arising from the operation of the business, enjoined. Plassey v. S. Lowenstein & Son, 330 Mich 525. “Both of the above lines of authority are good law if properly applied to the facts of the particular case. Northwest Home Owner’s Ass’n v. Detroit, 298 Mich 622. “The question before the court is whether the facts bring the case within the authorities cited by plaintiffs, or those cited by defendants. “Granting that an auto salvage yard is not the most desirable, it still is a legitimate business and not a nuisance per se. Perry Mount Park Cemetery Ass’n v. Netzel, 274 Mich 97. * * * * “It appears that the area is not strictly residential there being at least 5 commercial ventures in the immediate vicinity. The bulk of plaintiffs’ allegations are conclusions as to what plaintiffs believe will happen in the future. That plaintiffs’ counsel says they .are pleaded as facts does not make it so. “This court concludes that the bill of complaint 'does not state a cause of action. It does not appear that a nuisance must necessarily result from the ■operation of this business.” Prom the cited authorities and others it appears that equity will not enjoin an injury which is merely anticipated nor interfere where an apprehended nuisance is doubtful, contingent, conjectural or problematical. A bare possibility of nuisance or a mere fear or apprehension that injury will result is not ■enough. On the other hand, an injunction may issue to prevent a threatened or anticipated nuisance which will necessarily result from the contemplated act, where the nuisance is a practically certain or strongly probable result or a natural or inevitable consequence. The bill of complaint here is almost copied from the one that stood up in Saier v. Joy, 198 Mich 295 (LRA 1918A, 825). We quote from a syllabus in that case the following : “The maintenance of an undertaking establishment and morgue in a residential section of a city, although not a nuisance per se, may be enjoined by nearby apartment owners where it will cause depression to the normal person, lower his vitality, render him more susceptible to disease, and deprive his home of the comfort, repose and enjoyment to which he is entitled, and he will sustain substantial financial loss, because of the depreciation in value of his property, and there is a strong probability that he will be disturbed by noxious odors due to the use of formaldehyde in the summer months when the windows are-open.” To the same effect, from the syllabi in Rockenbach v. Apostle, 330 Mich 338: “Plaintiffs in suit to enjoin, as a nuisance, the establishment of a funeral home upon lots in blocks otherwise devoted to residential use held, to have-fully established by the great weight of the evidence-that such a place would have a depressing influence upon them and deprive them of the comfort and repose to which they are entitled in their nearby residences and that property values for residential purposes would be substantially depressed.” Syllabus-7. “It requires no expert opinion to reach the conclusion that a funeral home, as a constant reminder of death, has a depressing influence upon most people in view of the presence of funerals, hearses, coffins,, the keeping of dead bodies on the premises, the comings and goings of bereaved persons; it being unnecessary to show danger from disease or unpleasantness of odors arising from such business in order to enjoin it.” Syllabus 8. Proof of allegations in plaintiffs’ bill of complaint here as to the depressing effect of wrecked automobiles and the junk yard in a residential area would, seem to bring the case within the spirit of the tests set forth in the quoted syllabi language in Saier and in Rockenbach. It is evident from what the trial court said above-that it was holding that defendants’ business was a legitimate one and that as such it may not, under the-cited authorities, be enjoined as a nuisance by way of anticipation, except in a strictly residential area. The court then found that the area is not strictly residential and, hence, that an anticipatory nuisance there' may not be enjoined. It was required, how-over, for purposes of the motion, that the well-plead-ed allegations of the bill be. accepted as true. It .alleges that the immediate vicinity of defendants’ premises is residential, with some light commercial .activity some distance away. Accepting this as true, under the trial court’s apparent view of the law, the motion to dismiss should not have been granted. In Township of Garfield v. Young, 348 Mich 337, a suit to enjoin operation of a junk yard, this Court :said (p 342): “The question in each case is one of fact, and in ■each case we must consider the facts peculiar to that particular case.” Here plaintiffs never had a chance to try their case and to prove what they alleged are the facts as to the character of the neighborhood and the harmful incidents'and effects of the car salvaging business which must necessarily follow from its operation. In Culy v. Upham, 135 Mich 131 (106 Am St Rep 388), and Crocker v. Crocker, 362 Mich 6, this Court commented on the necessity for a record, such as usually is.available only after full trial, setting forth testimony and proofs sufficient to enable this Court to decide, de novo, all the issues essential to proper disposition of the case on the merits. That is lacking here. We think the case should be tried and proofs submitted such as will enable the trial court, and this one on appeal, to determine the character of the neighborhood in question, and the effects that operation of the contemplated business in all probability will have on it and those residing therein. The bill of complaint is sufficient to warrant this. Whether a full or partial injunction, or any at all, should follow may then he determined in accord with what the facts indicate. Reversed and remanded for trial. Costs to plaintiffs. Carr, C. J., and Kelly, Black, Kavanagh, Souris* Otis M. Smith, and Adams, JJ., concurred.	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Sherwood, C. J. This action was brought by the complainant to foreclose what purports to be a mortgage given by the defendants Watson to the Scranton & Watson Lumber Company, which is represented by the complainant, covering seven lots on Second street, in the city of Detroit. All the defendants, except the Watsons, are subsequent purchasers or incumbrancers. The bill is the ordinary foreclosure bill, with, the usual averments where filed by a receiver. All the defendants appeared and answered the complainant’s bill. Joseph E. Watson and wife, the makers of the alleged mortgage, filed their joint answer, in which they deny all indebtedness to the Scranton & Watson Lumber Company, and deny making the mortgage in question; and they neither admit nor deny that the complainant was appointed receiver of the Scranton & Watson Lumber Company, as claimed in the bill. And they further say and aver that no sum of money is due from them upon said mortgage, and that said mortgage is fraudulent, without consideration, and void. And the defendants, further answering, give the history of said mortgage in their own language, as follows: “ On the 31st day of May, A. D. 1886, said Joseph E. Watson, and Ida M. Watson, his wife, executed, and partly filled out, a mortgage blank, of the form in'ordinary use, and known as the c short form" mortgage blank, with nothing written in said blank excepting the said date, their names and -residence, as parties of the first part, c Scranton & Watson Lumber Company, of the same place, a corporation," as party of the second part, *ten thous- and dollars ($10,000)" as the consideration, and the description of the premises, as hereinbefore described; that the provisions and conditions of payment were left wholly in blank; that said consideration of $10,000 was written in said mortgage only for the purpose of mentioning some amount for a consideration, and not at all because said Watson was indebted to said Scranton & Watson Lumber Company in that amount, or in any amount whatsoever. “That said Joseph E. Watson was, at the time of executing said mortgage blank, a member of said Scranton & Watson Lumber Company, and had also theretofore been a member of the Stoopel Lumber Company, and he-was giving and taking credit with various parties in large-amounts; that at the time of the execution of said mortgage blank, as aforesaid, it was understood and agreed by and between said Joseph E. Watson and said Ida M. Watson and James P. Scranton, of the Scranton & Watson Lumber Company, acting for said company, that said Joseph E. Watson and Ida M. Watson should execute said mortgage blank, as aforesaid, and if said Joseph E. Watson should thereafter become indebted or obligated to said Scranton & Watson Lumber Company for money or credit thereafter-furnished him by said company, and he should, after contracting such indebtedness, become insolvent, the said Joseph E. Watson would prefer the said Scranton & Watson Lumber Company, by completing and filling out said mortgage blank, by writing therein the amount to be paid to said Scranton & Watson Lumber Company to discharge the obligation of the said mortgage, which should be the amount of the debt thereafter contracted by said Watson to said company, and by delivering said mortgage, so filled out and completed, to said company. “ That, after the said execution of said mortgage blank by said Joseph E. Watson and said Ida M. Watson, the- said Joseph E. Watson did not contract any debt or obligation to said company; that neither the said Joseph E. Watson nor the said Ida M. Watson ever filled out said mortgage blank, or authorized said Scranton or any other person to fill it out, or consented to have it filled out, or had any knowledge whatever of its being filled out, until they learned of its having been filled out and recorded; that said mortgage blank, signed and executed as aforesaid, was left by said Watson in care of said Scranton & Watson Lumber Company, of which said Watson was then a member, but was never delivered to said 'Scranton or to said company. “That on, to wit, the 15th day of June, A. D. 1886, in the absence of said Watson, and without the authority, direction, consent, or knowledge of said Joseph E. Watson or said Ida M. Watson, the said James P. Scranton took said mortgage blank, executed as aforesaid, and wrote or caused to be written therein the provision, obligation, and condition of payment referred to in said bill of complaint,, and as follows, to wit: ‘All liabilities which they may have contracted or incurred for said Joseph E. Watson, as sureties, indorser or indorsers, or any book-accounts, or choses in action, or any unlicjuidated amounts, due from said Joseph E. Watson to said Scranton & Watson Lumber Company, now due or to grow due/ and the subsequent parts of said mortgage blank, in accordance with said conditions of payment. “ That after filling out said mortgage blank, by writing or causing to be, written therein the amount and conditions of payment as aforesaid, the said James P. Scranton, for the said Scranton So Watson Lumber Company, on the 16th day of June, A. D. 1886, caused the same to be recorded in the office of the register of deeds for said county of Wayne." Defendants further say that the premises described in the mortgage constituted their homestead at the time the said blank mortgage was executed, and at the time it was so filled out and recorded by the • plaintiff; and that Mrs. Watson signed the blank when she did upon the express agreement that it was not to secure any present or then existing obligation of her husband; that there was no understanding or agreement whatever that the blank mortgage should ever be filled out or delivered or used in any manner whatever, and no credit or money was ever advanced or furnished to either of the makers when the blank was signed, or when it was filled out and recorded, which was fraudulently done, without the consent or knowledge, and contrary to the agreement, of the defendants. Defendant William C. Stoepel answers, and, upon information and belief, states,. in Substance, the same facts as are contained in the answer of Mr. and Mrs. Watson, and, in addition thereto, says that on September 17, 1886, he purchased the premises described in the complaint, of defendants Watson, in good faith, paying therefor full value, not taking into consideration said mortgage, because of its alleged invalidity, and received therefor a warranty deed; and that he still owns the title thereto.. He also claims the benefit of a cross-bill, .and asks, that the mortgage be declared to be void, and an order that the same be delivered up to be canceled. The defendants Lynch and Margaret Donaldson filed their joint and several answer. The Lynches claim to have a lien by virtue of an execution levy upon the property, upon a judgment rendered in their favor for the sum of $141.91 damages, and $29.15 costs, against the said Joseph E. Watson. Margaret Donaldson says, in said answer, she claims a lien against said property for the sum of $399.51; being the amount of a judgment rendered against Joseph E. Watson, and which is now levied upon said property by virtue of an execution issued upon said judgment. These defendants all deny the validity of the mortgage; aver that it was never executed and delivered to the lumber company, and was fraudulently made and recorded. They also claim the benefit of a cross-bill, and pray that said mortgage may be declared void, and that it may be removed from record. The cause was heard before Judge Jennison, upon pleadings and proofs, a part of which were taken in open court, who on December 31, 1887, made the following decree: “ This cause coming on to be heard upon the pleadings and depositions of Joseph E. Watson and Ida M. Watson, and upon proofs taken in open court, and Hoyt Post having been heard in favor of said complainant, and Charles K. Latham having been heard in favor of said defendant Stoepel, E. W. Pendleton in favor of said defendants Joseph E. Watson and Ida M. Watson, and Alfred E. Lucking in favor of said defendants Lynch and Donaldson, and it appearing to the court that said complainant has not, by preponderance of proof, showed what authority was given complainant to have the mortgage filled up after it was executed and delivered, and that parol authority would not be sufficient for that purpose, it is ordered, adjudged, and decreed that the bill of complaiñ't in said cause be, and the same is hereby, dismissed, with costs.”. On leave (being duly granted by the circuit court, the complainant took an appeal to this Court. We have examined the record in this case carefully, and we are satisfied the learned circuit judge came to the correct. conclusion, and that the mortgage must be held void, for the reason that it was never executed and delivered by the Watsons containing the material provisions it now does. When the alleged mortgage was delivered by Watson to the Scranton & Watson Lumber Company, if it ever was delivered, it is conceded it contained no conditions. And the defense in the case is that the conditions in the mortgage were .left blank when it was signed, and that those now appearing in the mortgage were written in afterwards, and without authority of the makers. Watson and his wife were both sworn, and both say they gave no authority to any one to have the conditions put into-the mortgage; and we do not find from any source that Mrs. Watson ever gave any person authority to fill out the blanks. Watson says the design of the mortgage was to secure the company for any personal advances made to-him afterwards, provided his share of the profits did not equal the advances; and that the signed blank was left with Scranton personally in trust, and not to be used until h.e (Watson) should consent and direct; and Mrs., Watson testifies she so understood it, and signed it with such understanding. Scranton was sworn, and testified that Mr. Watson-handed him the paper, and told him to take it to Davock, and have him fill it out. (Davock was the notary who-took the acknowledgment.) Scranton took the paper to Davock, at his office, who filled in the conditions as Scranton dictated. Scranton says the mortgage was given to secure past as well as future indebtedness to the company. In stating what Mr. Watson authorized him to do,, he says, in substance, that he was authorized by Watson to take the mortgage to Davock, and have him write in the conditions, so worded as to cover all past and future-indebtedness and liabilities from Watson to the company,, says: “1 never saw Mrs. Watson with reference to this mortgage until after it had been filled up;” further says: “ Had no further conversation with Mr. or Mrs. Watson subsequent to the giving of this mortgage, with reference-to its validity.” Mr. Davock, in his testimony, says that he filled out the condition of the mortgage as requested by Mr. Scranton; that the Watsons were not present, and he never had any authority from them to fill in the conditions; that the conditions that were afterwards filled in were not mentioned at the time the mortgage was executed. We have now given the names of all the witnesses who-can give or clo give ns any positive knowledge of the facts upon which the vital question in this case is raised, and as to these facts it will be noticed that Scranton and theWatsons are in direct conflict in their testimony. Was the change in the instrument, made after it was executed and delivered, with or by the authority of theWatsons? This is the only question of any importance in the case. It is not a question whether, if Mr. Scranton's testimony is to be believed, the parol authority which he swears to would be sufficient (which we think it would not, under our statute and the weight of authority); but did the makers of the blank mortgage give Mr. Scranton any authority at all to fill out the mortgage? If the testimony of the Watsons and the notary is to be credited, they never gave any such authority. We think the preponderance of the testimony is clearly with the Watsons, and that the decree must be affirmed, with' costs. • The other Justices concurred.	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Long, J. The defendant is.a corporation owning and operating the Big Rapids Branch of the Chicago & West Michigan Railway, running through the • unincorporated village of Alleyton, where defendant has a station on its said road. Said railroad is crossed, at that point, by a single highway only, and said station-house- is situated immediately at said crossing, and there are no fences or cattle-guards at that point, and no fences on either side of the railroad for a long distance either way from'said highway crossing. This action was brought in justice’s court of Newaygo county to recover damages for the negligence of the defendant in killing a cow of the plaintiff. On the trial before the justice, the plaintiff obtained a judgment for $30 damages, and the justice taxed plaintiff’s costs at the sum of $30.06, which included an attorney fee of $25. The cause was removed by the defendant, by certiorari, to the circuit court for said county,. and the following errors alleged in the affidavit for the writ: “ 1. That the testimony introduced on the trial of said cause did not show any cause of action in favor of said plaintiff, and against said defendant. “ 2. That no testimony was introduced in said cause tending to show any liability on the part of defendant, as set forth in plaintiff’s declaration in said cause. “3. That said justice erroneously included in the costs of said suit said attorney fee of $25.” This judgment was affirmed in the circuit court, and the cause removed to this Court by writ of error. The evidence taken before the justice is fully set forth in his return-. On the trial the defendant admitted plaintiff was owner of the cow, and that it was killed by defendant’s cars, and that defendant was a corporation, doing business within this State. It was shown upon the trial that at the village of Alleyton, through which said railroad passes, the said railroad is practically unfenced for nearly two-thirds of a mile, and is without any cattle-guards along the whole distance ; that plaintiff’s cow got upon defendant’s right of way at a point somewhere within this unfenced portion of- defendant’s railway, when she was struck by defendant’s cars, and received the injury complained of. The statute requires such corporation to erect and maintain fences on each side of the right of way of its road, and prescribes the kind and height of the fence that shall be built, and that connecting fences and cattle-guards shall be constructed at all highway crossings, etc.; and until such fences and cattle-guards shall be duly constructed, the company or corporation owning or operating such road shall be liable for all damages done to cattle or ■other animals thereon, which may result from the neglect •of such company or corporation owning or operating such road to construct and maintain in repair such fences and cattle-guards aforesaid, to be recovered by the owner of such cattle, in a civil action, before any court of competent jurisdiction, together with an attorney fee of $25, to be taxed as costs against the defendant in case of a recovery in such action. The testimony given by the plaintiff shows that the ■station and highway crossing are so situated that said railway could be fenced along both sides of that portion of the line up to said highway, and cattle-guards put in and maintained at said crossing, without interference with the mutual convenience of the defendant and the public in transacting their business with each other, and there was no attempt on the part of the defendant to ■contradict the testimony on this point. We think there was sufficient evidence to warrant the giving of the judgment in the case. The other error alleged in the affidavit for the writ relates to the taxation of an attorney fee of $25 before the justice. This question was settled by this Court in Wilder v. Railway Co., 70 Mich. 382 (38 N. W. Rep. 289), in which it was held that no such attorney fee could be recovered; and this case must be ruled by it. It follows that the judgment of the circuit court must be reversed and set aside, and the judgment of the justice affirmed as to damages and costs, excepting as to the $25 attorney fee, which is reversed and vacated. Costs of this Court to defendant, and of the circuit court and the justice’s court to plaintiff, except such attorney fee. Champlin, Morse, and Campbell, JJ., concurred with Long, J. Sherwood, C. J. I concur in the result.	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Sherwood, C. J. This suit was an action of ejectment by the plaintiff, who owns property on the Lognon farm, against the defendants, who own property on the Wood- bridge farm, adjoining on the east. The G-alvins were the owners, and Hickey was their tenant, occupying the strip of land in dispute, the same being a parcel 12 feet in width and about 130 feet in length, lying in the city of Detroit. The declaration was in the usual form, and the plea the general issue. The plaintiff claims the strip was a part of the Lognon farm, and the defendants insist it was a part of the Wood-bridge farm. The plaintiff also .claimed that the defendants had moved their west fence from the dividing line between the two farms over on the Lognon farm at some time less than the period of 15 years before the plaintiff brought his suit. Upon the trial the plaintiff claimed to hold by adverse possession, under claim of title, and an acquiescence on the part of defendants and those under whom they claim. It was claimed by him that a certain fence east of the ditch on- said land was the line, as established by them, and the acquiescence of the parties and their grantors. On the contrary, the defendants insisted that the center of said ditch was the division line' between the parties' parcels of land. The suit was commenced November 25, 1879, and the trial of the cause was closed on November 20, 1887, and the defendants prevailed. The plaintiff brings error. The record shows that the cause has been tried five times. The question presented upon this trial was one of possession entirely as it went to the jury, and whether such possession was adverse in the plaintiff. J. Wilkie Moore was called to the stand by the plaintiff, and gave testimony in answer to plaintiff's questions that he was 73 years old, and had known the premises about 50 years,' and knew the Lognon farm, and knew of Lognon and the Spechts when they occupied the farm, and knew Got. Woodbridge when he lived on his farm, and saw the old fence between the two farms as early as 1835 or 1836; that the Spechts then claimed to own the Log-non farm, and occupied it as far east as the fence; and from the time he first knew the premises the Lognons and the Spechts occupied up to the fence, down to the time Beecher bought. On cross-examination by defendants’ counsel, he said he also knew of the ditch; that it was from five to seven feet wide; that it was there when he' first knew the premises; that he recollected talking with Gov. Woodbridge about the lines of the farms; that the ditch was on the west side of the fence; that there were three lines, — that is, there was a fence, a ditch, and a row of trees. Counsel then put the following question: “What will you say as to the ditch being the dividing line of occupation between the two farms?” This was objected to by plaintiff’s counsel as incompetent, and because— “It is not pretended that the witness has any knowledge of any survey or anything to show where the dividing line was.” The objection was overruled, and the witness was allowed to answer: “I supposed the ditch was aline; yet at the same time there was the fence, and the ditch, and the row of trees about five feet on Woodbridge lot, and the ditch the other way. I don’t know as this is proper, but I supposed the ditch was on the line, and the fence was put over.” Witness was then asked by counsel, for the defendants the following question: “You say the ditch was the line. It was generally supposed the ditch was the line, was it not?” This was objected to as— “ Incompetent under the theory of the plaintiff’s case as we have outlined it. It is immaterial where the line is. The question is whether they occupied up to the fence.” The objection was overruled, and the witness answered (the question being repeated in substance), “I think it was.” This testimony was incompetent. What the witness supposed was generally understood, or what he supposed or thought in the matter, was clearly inadmissible, and especially as it is quite apparent from all his testimony he knew nothing of the line whatever. This witness’ age and long acquaintance with the premises gave an importance before the jury to his testimony, which, in this particular instance, was entirely misleading, and undoubtedly prejudicial to the plaintiff’s case, if he had any, and the objections should have been sustained. The following question, put to William Woodbridge was clearly objectionable as calling for a conclusion, of a most mischievous tendency, viz.: “ What can you say as to the ditch being acquiesced in as the dividing line between the farms by the respective parties in interest? What can you say of the ditch being acquiesced in as the dividing line between the Woodbridge farm and the Lognon farm at the time the land was possessed by the Spechts, — Ferdinand, Victor, and Louis?” Witness answered: “Well, sir, it was tacitly consented to by all parties that the center of that ditch was the dividing line, for nobody ever obstructed it at all in any way. They never put up any fence down in the ditch.” All the questions relating to the subject of acquiescence put to this witness were objectionable on the ground stated, and the testimony was erroneously admitted. We find no other rulings of the court so far objectionable as to make a reversal necessary to correct them. Seven rulings of the court, relating to the charge and the requests to charge, remain to be considered. In regard to plaintiff’s first request, it was not a ease where the court should have directed a verdict for the jury, and the court did not err in declining so to do. The defendants, in their fifth request, asked the court to charge the jury as follows : “ If you believe the testimony of the Fitzpatricks, that the fence along the Galvin lot, along the Woodbridge orchard, was removed prior to the summer of 1864, then there can be no claim of adverse possession on the part of Luther Beecher alone, and defendants are entitled to a verdict.” The giving of this request was properly excepted to. It assumes that, unless land adversely occupied is inclosed by a fence, such possession and occupancy cannot ripen into a title by the lapse of time. Such, however, is not the law; there are other ways of holding possession of land besides inclosing it by a fence. We see no objection to the other requests of defendants’ counsel given by the court. The plaintiff’s counsel made request of the court to submit to the jury, to be answered specifically, the following questions: "1. Did not the Lognons, the Spechts, and Beecher, during their respective occupancy of the Lognon farm, occupy the same, each under a claim of title, openly, exclusively, adversely, notoriously, and hostile to any other person, up to the old farm fence; and did not each of them, respectively, acquiesce in that fence as the dividing line between the farms; and did not Gov. Woodbridge, during his occupancy of the Woodbridge farm, also thus occupy to the fence, and acquiesce in it as the dividing line? “2. Had not the old farm fence stood for many years along the west side of the Galvin lot, some five or six feet east of the place where the fence now stands, on the west side of said farm lot? “ 3. Was not this old farm fence along the west side of the Galvin lot moved by John Galvin and others for the defendants, in the summer of 1865, five or six feet further west, and to tbe place it now occupies; and was not such removal less than 15 years before November 25, 1879, wbicb was tbe date of tbe commencement of this suit? “4. Had not tbe occupation of tbe Spechts, tbe Lognons, and Beecher been continuous for more than twenty years before tbe Galvins removed tbe fence in tbe summer -of 1865?” Tbe court declined to submit tbe fourth question at all, and submitted tbe first, second, and third, with the following instructions: “Now, gentlemen, if your verdict should be for tbe plaintiff, then I direct you to' answer tbe first three questions submitted by plaintiff's counsel, — Nos. 1, 2, and 3. If you find against tbe plaintiff, then you want to designate your verdict on the special questions in accordance with tbe queries submitted.” We see no reason why these questions should not have been submitted; and it was not proper for tbe court to tell tbe jury what answers they should give to tbe questions, or either of them. Tbe object of tbe statute in allowing such specific questions to be submitted to tbe jury, and requiring them to make answer thereto, was to ascertain whether tbe jury bad, in making up their general verdict, properly applied tbe law, as given by. tbe court, to tbe facts in tbe case. Tbis can never be done if tbe jury are to be directed by the court what answer shall be made to each question asked,, in tbe event tbe general verdict is a certain way. Tbis direction by tbe court was error, and it was also error for the court to decline to require tbe jury to make answer to tbe plaintiff's questions so submitted when asked to do so by plaintiff’s counsel. Tbe following questions were submitted for specific answers by tbe jury by defendants' counsel, and were returned by tbe jury, answered as follows: “1. Is not tbe land in dispute on tbe Woodbridge farm? “A. Yes. Was not the center of the ditch acquiesced in by all the Spechts, and Lognons, and Woodbridge, as the dividing line? “A. Yes. “3. Have not the heirs of Governor Woodbridge, and the Galvins, occupied this land since the summer of 1864, and maintained an adverse possession? “A. Yes. “4. Di'd Mr. Beecher ever claim any title to this strip until the commencement of this suit in 1879 ? “i. No. "5. Has not the Galvin fence stood where it now is since 1865? “A.. Yes.” There was the same error committed by the court in telling the jury what answers to makp/if the general verdict was in favor of one or the other of the parties. Some objection was made to the submission of these questions and answers given, but we see no objection to them, and but for the errors pointed- out they would have been conclusive of the case in favor of defendants. The judgment must be reversed, and a new trial granted. Champlin, Morse, and Long, JJ., concurred. Campbell, J., did not sit. 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Kelly, J. A jury in the Berrien county circuit court awarded plaintiff $15,000 damages for injuries sustained as the result of plaintiff’s collision with defendant’s parked tractor and trailer. Defendant’s motion for judgment non obstante veredicto was granted by the trial court on the ground that plaintiff was guilty of negligence as a matter of law and that plaintiff’s negligence was a proximate cause of his injuries. Plaintiff, on November 14, 1958, at about 8 p.m.r was driving a 1954 Chevrolet north on North State street in the city of St. Joseph, Michigan. North State is a 2-lane, rough, uneven street, running north and south, and located in an industrial section of the city. Some 335 feet south of the point of the collision on State street, on the crest of a hill, are 2 sets of railroad tracks. Just north of the tracks, entering* from the east, is Camber road, which is a 2-lane, hard-top road, serving the city’s industries and their parking lots to the east. Some 300 feet north of the railroad tracks, and entering North State street from the east, is Graves street, which enters into the' Whirlpool parking area and deadends at the east side of North State street. There was no fixed curbing on the east side of North State street north of the railroad tracks for some 210 feet. North of the north side of Graves street is an open concrete surfaced area, used for unloading at a Whirlpool Corporation building and entered into» from North State street. Some time after 7 p.m., on November 14, 1958, 2 tractor-trailers owned by defendant came to North State street to unload their cargoes of steel at the Whirlpool dock.' The truck driven by Arthur Fitch unloaded first, and then backed out of the unloading bay onto North State street so the second trailer could unload. Fitch, after backing out, then parked iii a southerly direction directly facing oncoming traffic, approximately 1 to 2 feet from the east curb on North State street, just north of the Graves street 'intersection. Fitch then proceeded to assist the other driver unload, leaving his vehicle unattended, j There was conflicting testimony as to whether or not the tractor-trailer had its parking lights on. Officer Hahn testified he observed no lights on the truck when he saw it a few minutes after the collision. No witnesses actually observed the accident. The testimony of defendant’s witnesses was that the truck had its parking lights on at the time of collision (a clearance light at each side, 2 clearance lights on the top of the cab, and 2 clearance lights at the rear of the trailer). Defendant’s witness, Arthur Ludwig, a guard at Whirlpool plant number 1, testified he was making the round of his stations shortly before the accident and that he observed the parked truck with amber lights illumined on both sides of the top of the truck. On North State street, at the point of the accident, many signs were posted by the city of St. Joseph prohibiting parking on either side. Defendant admits violation of not only the parking ordinance of St. Joseph, but, also, of CLS 1956, § 257.674 (Stat Ann 1960 Rev § 9.2374), which makes parking unlawful where ail official sign prohibits same. Plaintiff, William F. Dismukes, testified that on the evening of November 14, 1958, at about 8 p.m., •he was returning to his home after a business trip to Benton Harbor; that his brakes and lights were operating properly, and that he had set his lights on “dims”; that he was driving 20 to 25 miles per hour and made observation as he approached the railroad tracks on North State street; that he did not see anything parked or located south of Graves street after passing over the tracks; that he had driven this route many times and as he crossed the tracks he made observation and could see outlines of the buildings on the north and south sides of Graves street; that he made observation at Camber road, the "Whirlpool parking lot entrance, and Graves street, and did not observe anything that might have been a truck parked on the east curb just north of Graves street intersection. Plaintiff further testified that he did not see anything as he crossed Grayes street on North State street and did not remember anything about the collision; that he was approaching the Graves street intersection and “the next thing I knew I was in the hospital.” On cross-examination plaintiff stated he had traveled this route many times during the past 3 years, both during the nighttime and the daytime. He indicated he would have been able to have stopped his car within a distance of 40 feet, traveling 25 miles per hour, but that he never saw defendant’s truck ahead of him; that he was traveling close to an imaginary curb line. On redirect examination plaintiff testified he had no memory of crossing Graves street on the night of the accident; that he had never seen a car or truck parked along the east side of North State street in any of the times he traveled it; and, on recross-examination, plaintiff stated he could see to the north line of Graves street, but nothing beyond that before the collision. Later in the trial plaintiff was recalled to the stand and testified on redirect examination that his memory fails ..of the accident approximately 10 to 12 feet south of the Graves street intersection. He testified he could see across the intersection, and possibly 8 or 10 feet beyond the intersection itself; that the intersection was 32 feet and that from this point where he lost his memory he could see a total of some 54 to 56 feet ahead of him, but did not see a truck parked on North State street. Plaintiff’s witness, Neil Berndt, city engineer, testified as follows: That there were posted “no parking” signs on both sides of North State street where the accident occurred; that there were 2 street lights from the railroad tracks to a point 400 feet north on North State street, but that there were no street lights on the east side of North State street. Officer Hahn testified that it was not a direct, head-on collision; that the “center of the hood of the automobile probably fell right on the line of the right side of the semi-tractor and trailer”; that he did not notice any lighting on the tractor when he arrived at the scene, and no flares were placed around the vehicle; that it was somewhat foggy that evening and a slight mist; that the road was pretty bumpy ; that the light on the Whirlpool building actually was intended to shine down on Graves street so that the plant guard could view all cars coming into Whirlpool on that street; that it illuminates very little of North State street at that point; that no skid marks were found; that earlier in the evening he saw a truck parked there without lights and had had difficulty seeing it; that in his experience of patrolling that area he had not observed trucks parked where this one was. William Ehrenberg, the wrecker operator, testified that when he approached the railroad tracks on North State street he did not observe anything •ahead; that the weather was foggy; that when ho ■arrived at the scene of the accident the truck was 1 to 1-1/2 feet away from the curb; that the light on the "Whirlpool building at the Graves intersection lights the street very little, if any; that when he drove over the railroad tracks he could only see the police car flasher. He also testified the point of impact was the right front of each vehicle. Additional testimony was introduced ■ that • the light on top of the Whirlpool building did not throw light on North State street where the accident occurred, but, rather threw a shadow in front of the building on North State street because the light hit the south side of the building, and plaintiff’s testimony showed that the intersection of Graves and North State streets was dark. We examine the record in the light most favorable to the plaintiff on an appeal from the trial court’s order granting defendant’s motion for judgment non. obstante veredicto. See Fitzpatrick v. Ritzenhein, 367 Mich 326. This Court in a recent decision, namely Barnebee v. Spence Brothers, 367 Mich 46, reiterated the well-established rule that proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in consideration of the evidence in each particular case. See, also, Prosser on Torts (2d), “Functions of Court and Jury,” § 50, p 281, and Tracy v. Rublein, 342 Mich 623. There was sufficient evidence from which the jury could have found the defendant’s negligence, by violating the “no parking” zone on North State street, contrary to CLS 1956, § 257.674 (Stat Ann 1960 Rev § 9.2374), on the night of the accident, was the proximate cause of plaintiff’s injuries. Berry v. Visser, 354 Mich 38. There remains the question whether plaintiff was guilty of contributory negligence as a matter of law, thereby precluding recovery from defendant. The trial court in its opinion determined plaintiff had a duty to observe defendant’s parked tractor-trailer and to stop within the assured clear distance ahead. No objections as to the trial court’s instructions are made by either plaintiff or defendant, and we may assume that the jury was properly instructed on all phases 'of the law applicable, including assured clear distance, and that the jury considered those instructions along with the evidence submitted. ■ This Court has repeatedly held that a reasonable construction must be placed upon the assured clear distance statute. Bard v. Baker, 283 Mich 337; Cookson v. Humphrey, 355 Mich 296; and Sun Oil Company v. Seamon, 349 Mich 387, where we stated (pp 411, 412): “The statute (assured clear distance) must be reasonably construed. A literal reading thereof would compel us to say that in every case of collision the statute has been violated by the mere fact of collision alone-. ' The driver has either been going too fast, or, if driving at a reasonable speed, has permitted his attention to wander and thus has not perceived. the .obstruction in time .to stop. Such literal interpretation would make the driver an insurer against' any collision in which he might become im volved. We cannot assume that the legislature intended '' such a result. The situations under which collisions occur are infinite in complexity and variety, and, to accomplish justice in particular cases, we have been forced to create a number of exceptions to the statutory edict.” No testimony was offered in re the last 80 feet that plaintiff’s car traveled, due to plaintiff’s claim of loss of memory caused by the accident. The question of loss of memory was not seriously challenged, and, under .the favorable-view principle,'must be accepted. In Rytkonen v. City of Wakefield, 364 Mich 86, we held that the defendant city was not entitled to a directed verdict on ground of contributory negligence as a matter of law on the part of plaintiffs decedent, a motorcyclist, whose'Vehicle collided with an unlighted street barricade on a stormy night, at 1:30 a.m., where there were no eyewitnesses to the accident, and we held such evidence presented a question of fact for jury as to contributory negligence of decedent. ■ The record presents a problem, for decision that could cause a trial judge, or a member of this Court, to conclude that if he had been a member of the jury he would have determined that plaintiffs negligence' precluded recovery. That, however, is not the privilege ■ or prerogative of either the trial court or this Court. .The peculiar nature of the street lighting;' the partial absence of curbing, the descent of a hill, the uneven -street surface, and the improperly and illegally parking of the truck, presented testimony from which the jury could have found, under the circumstange.s of this case, plaintiff was not guilty of violating. the assured clear distance statute and wás ént'itled to-reepver for the" damages he suffered. This case warranted a submission to the jury of the question.. of. proximate cause and contributory negligence, as. reasonable men could differ on the findings. ... The order of the lower court granting judgment non obstante veredicto is reversed, and the case, remanded for entry of judgment in accordance with the’ jury’s verdict. Plaintiff shall have costs. Carr, C. J., and Black, Kavanagh, Souris, Otis M. Smith, and Adams,'JJ'., concurred with Kelly, J. Dethmers, J., concurred in result. CLS 1956, § 257.627 (Stat Aim 1955 Cum Supp § 9.2327)-.	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Black, J. February 9,1961 plaintiff duly applied,, to the defendant city, for a permit authorizing construction of a “drive-in” restaurant on its recently purchased parcel of Detroit property. The parcel was then zoned B2, permitting such construction and' use. Some 3 weeks later the city notified plaintiff that the latter’s plans, submitted with the application, required certain corrections. The corrections were made. A week or so later the city’s building-department advised plaintiff that no permit would be issued; that a petition to rezone such parcel had just been filed per ordinance authorizing such a petition. The common council of the defendant city promptly resolved that a public hearing, upon the petition to rezone, be conducted April 7th next at 10 o’clock in the morning. March 31st plaintiff filed in circuit the instant petition for mandamus to compel issuance of the permit it had applied for. Hearing on order to-show cause was set for April 7th, at 2 in the afternoon. April 7th, at 10 in the morning, the resolved public hearing was held. It concluded, allegedly, with announcement that a decision would be made at the regular meeting of the council to be held April 11th. However, after plaintiff and its counsel left the hearing, the council again took up the matter and voted to amend — with immediate effect — the then-ordinance so as to prohibit plaintiff’s intended use of such parcel. That afternoon the circuit judge, being advised of the council’s action, adjourned hearing of the order to show cause. Thereafter defendants amended their answer to plaintiff’s said petition so* as to include the amendatory ordinance as a defense, to which amended answer plaintiff filed an amended reply. • The pleaded issues came to testimonial trial October 31, 1961, and resulted in judgment denying and dismissing plaintiff’s said petition. It reviews on granted leave. This case is a substantial duplicate of Willingham v. City of Dearborn, 359 Mich 7. There is a decisive difference, however. In Willingham the discretion •of the trial judge was inclined against permission to amend tarde the pretrial statement, also the defendant city’s answer, so as to include a defense manufactured by amendment of the city’s zoning ordinance after the property owner’s petition for mandamus had been filed. Here, the answering and replicating pleadings were duly amended so as to bring squarely before the court a like defense which, •at the time of filing of plaintiff’s petition for mandamus, was nonexistent. Further, in the present ■case, the subsequently prepared and unamended pretrial statement recites unqualified satisfaction — all .around — with such amended pleadings. The circuit court might well — of discretion and upon authority of Willingham — have done here what the same court did in Willingham. It did not do so, however, and so the presented questions are controlled by City of Lansing v. Dawley, 247 Mich 394. 'The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an •ordinance is enacted which validity bars what was lawfully authorized by the permit. Mandamus proceedings, even though filed and considered on the law side, are governed by equitable principles. The writ is one of grace, and does not issue to compel performance of what is shown on due pleading and proof to no longer be a clear legal duty. In this case the circuit court was duly faced with a “law,” brand new yet valid for its purpose, which "between the filing of plaintiff’s petition and hearing thereof came to enactment prohibitory of that which •plaintiff sought to compel. Since the grant or denial ■of a petition for mandamus is, as in equity (see Carlson v. Williams, 348 Mich 165, 168; Carlson v. Wyman, 189 Mich 402; and Palmer-Stevenson Construction Co. v. Mason Circuit Judge, 176 Mich 326), determinable according to germane conditions existing at the time of hearing and determination rather than at the time of institution of the proceeding, it must be held upon authority of the Dawley Case that the law in effect at the time of hearing and determination controlled plaintiff’s petition and called for denial of the writ as sought. Plaintiff’s remaining allegations of error have been duly considered. They are, respectively, that the amendatory ordinance was not validly enacted; that the action of the city “in preventing the issuance of a building permit * * * until the zoning ordinance could be changed” was invalid; that the amendatory ordinance by its terms is not “retroactive,” and that the ordinance as amended should be construed so as to exclude from its prohibitory purview any good faith previously intended use. We cannot agree with plaintiff’s contentions thus advanced. It follows that the circuit court’s judgment should be, and therefore is, affirmed. No costs. Carr, C. J., and Dethmers, Kelly, Kavanagh, Souris, and Otis M. Smith, JJ., concurred. Adams, J., did not sit.	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Adams, J. This is an appeal from an order modifying a divorce decree entered November 23, 1951. The parties had 2 children, a boy aged 3-1/2 and a girl aged 1. Custody of the boy went to defendant, of the girl to plaintiff. Defendant was required to pay $30 per month for his daughter’s support. ITe was earning $3,000 yearly. On April 8, 1960, plaintiff filed a petition for modification of the divorce decree to increase the daughter’s support. Plaintiff worked prior to March 15, 1960, but her job ended and she has no idea of returning to work. She has another child by a second marriage. Her husband is employed. She computed the cost of the daughter’s support at $111.72 per month. The amount is not disputed. She concedes it would cost the defendant an equal amount for the support of the boy. Defendant now has annual earnings of $6,641. He lives at home with his parents and has the following weekly expenses: Social security and retirement............ $ 7.46 Income tax............................. 18.71 Automobile purchase loan................ 18.50 Personal loan........................... 7.50 Mortgage loan.......................... 7.50 Life, health, and hospital insurance; medical and dental bills...................... 6.76 Pood and lodging....................... 40.00 Car insurance and operating expense...... 9.15 Clothing................................ 3.00 Dues, cabin expense and miscellaneous .... 2.11 $120.69 In addition, he has been paying $30 a month for his daughter’s support. He has been going in the red $3.73 per week. The chancellor said: “On the income that Mr. Williams has I think he can pay a little more than he is paying. Of course, I am taking into consideration that there were 2 children. He is supporting 1 of those children himself, and apparently doing a good job because there is no complaint about that. “But I believe * * * it could be increased to $10 per week. Now, I realize it costs more than that to bring up this girl, but there is no use of this court sitting up here and making an order that beginning as of the first week it is going to go way behind. “We have an itemization of expenses here. Whether they are right or wrong, I cannot find where there are too many that are out of line. And I am taking into consideration the fact that he is bringing up 1 of the children.” The court awarded an increase in the child support from $30 per month to $10 weekly. Plaintiff claims an abuse of discretion by the trial court. Plaintiff contends that from the date of the decree to the date of the order, there was an increase in the need of the child from $6.92 to $25.78 a week, or more than 272%; that over the same period, there was an increase in defendant’s income from $57.69 a week to $127.71 a week, .or more than 221%; and that the lower court’s order for child support was only from $6.92 a week to $10 a week, or 44-1/2% increase. Plaintiff also claims that defendant’s expenses could be reduced. The matter has been submitted to us upon an agreed summary of testimony which is 2-1/2 printed pages in length. We are furnished with approximately 1 page of narrative as to testimony of plaintiff and 1-1/2 pages of narrative as to testimony of defendant. Upon the basis of this record, we are asked to findan abuse of discretion by the trial court. We are unable to do so. Perhaps defendant can, or could, cut down on his present expenditures. Perhaps defendant could eliminate the ownership of an automobile or of the cabin property. Perhaps defendant, who is a schoolteacher, could supplement his present income by additional employment during-summer vacations, or otherwise. Perhaps the debts which defendant has incurred were needlessly incurred. Perhaps the amount paid by defendant to his parents for food and lodging is too much? Too little? The record does not answer these or other questions that come to mind. Upon a sparsity of facts we are asked to lay down some sort of empirical method of fixing support so that “members of the bar can predetermine, within a few dollars, what a court will say about child support.” . Under these circumstánces, we can only reiterate once again what we said in Spalding v. Spalding, 355 Mich. 382, 384: “We have held repeatedly, and we again hold, that we will not interfere with the discretion of the trial chancellor in these cases unless a clear abuse thereof is manifest in the result reached below. The kind of determination before us requires a weighing of human and economic factors of the utmost complexity, a weighing that can best be accomplished at the local le'vel, not in these chambers. In view of the frequency with which cases are reaching this Court assailing the exercise of a trial court’s discretion as an abuse thereof, we deem it pertinent to make certain observations with respect thereto in the interests of saving expense to the litigants and avoiding delay in reaching final adjudication on the merits. Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must bé so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made.” The decision of the chancellor is affirmed. No costs. Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, Souris, and Otis M. Smith, JJ., concurred.	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Dethmers, J. This is a chancery action, filed under the so-called Dodge act (PA 1921, No 249, as re-enacted in the probate code, PA 1939, No 288 [CL 1948, § 702.45 et seq. (Stat Ann § 27.3178[115] et seq.)]), for approval of an agreement to settle a controversy as to the construction and effect of certain provisions of the last will and testament of Paul R. Gray and as to the rights of persons there under. The trial court entered an order approving the agreement and authorizing and directing the successor trustees under the will and the duly-appointed guardians ad litem to enter into and execute the agreement of settlement and so complete it in conformity with the governing statute. Defendant successor trustees under the will declined to sign and took this appeal. Hereinafter they will be referred to as the trustees. Testator died in 1929 leaving surviving him as sole heirs at law his widow and 3 married daughters who are all the children he ever had. His will was admitted to probate. After specific bequests, it devised and bequeathed the residue of his estate to his executor and trustee, in trust, for specific purposes, with directions that he “shall then set apart one-third (1/3) for the use of my wife and shall divide the remainder into as many portions or shares as there are children of mine living, or deceased children leaving lawful issue, and a share shall be set apart by my said trustee for each child of mine living, and the share of each deceased child shall be divided into as many portions as there are children living at my death of such deceased child, and a share shall be set apart for each such child.” The will then directed the trustee to pay the net income from the wife’s share to her and provided that at her death the principal sum of her share shall be distributed as the laws of Michigan provide. Next, the will directed the trustee to pay the net income of each child’s or grandchild’s share to such child or grandchild “so long as he or she shall live, at which time the whole of his or her share shall be distributed as the laws of Michigan provide.” The italicized language for distribution, at their deaths, of the shares of the 3 daughters' (because none of his children predeceased him) as the laws of Michigan provide presents the question sought to he settled by the agreement. Testator’s widow received the prescribed income during her lifetime. She died in 1945, leaving as her sole heirs-at-law the 3 daughters who, with her, had been testator’s sole heirs-at-law at his death. The principal sum of the widow’s share was then distributed and divided equally between the 3 daughters, becoming their property outright. As far back as in 1955 question arose in the minds of the 3 daughters, their husbands and their counsel concerning the above noted testamentary provisions. Counsel for some of plaintiffs advised that the words in question could be interpreted as providing, at the death of each of the 3 daughters, respectively, for any one of the following: “(1) Corpus to be distributed to heirs of the life beneficiary. “(2) Corpus to be distributed to heirs of testator, (a) determined as of the date of his death, (b) determined as of the date of life beneficiary’s death. “(3) Corpus to become part of the estate of the life beneficiary, and pass by her will if she left one, or to her heirs if she should die intestate. “(4) The corpus to be distributed as the life beneficiary may provide by the exercise of a power of appointment.” The settlement agreement was entered into in 1960. It was signed by the 3 daughters, their husbands and all of their adult children, except one of the latter who was mentally incompetent. The signers are also plaintiffs in the ease. Named as defendants are the 2 successor trustees under the will, who also are the appellants here, the mentioned mentally incompetent grandson of testator, the minor children and the grandchildren, all of whom were minors, of the 3 daughters, and the unknown, unborn, unascertained heirs, devisees and legatees of the 3 daughters and of testator, determined as of each of the 3 successive times when one of the 3 daughters should die. Guardians ad litem were appointed for all of these defendants who could not act for themselves, who appeared and made reports and recommendations to the court favorable tb this settlement. The 2 trustees appeared and alone contested this action. Pertinent provisions of the agreement as presented to the court read as follows: “1. Paragraph Third (e) of the will of the deceased shall finally and for all purposes be construed to provide that upon the death of each of the daughters of the deceased named in paragraph (b) above, the trust for her benefit shall terminate and the entire corpus thereof shall be distributed as follows: “A. In equal shares to her then surviving children and the then surviving lawful lineal descendants, by right of representation, of any then deceased child or children. “B. If she leave no child or other lawful lineal descendant her surviving, then in equal shares to her then surviving sisters and the then surviving lawful lineal descendants, by right of representation, of any then deceased sister or sisters. “C. If she leave no child or other lawful lineal descendant or sister or lawful lineal descendant of any sister of her surviving, then to those who would be entitled to distribution of her personal estate under the intestacy laws of the State of Michigan then in force. “2. The agreed construction set forth in paragraph 1 above shall be forever binding and conclusive upon the parties hereto, subject to the condition, but solely to the condition, that this agreement is completed by the due execution hereof by the successor-trustees of the trusts created under the provisions of paragraph Third of the will of the deceased and the guardians or guardians ad litem of all other persons who have, or may have, interests which are, or may be, affected thereby but who have not attained majority or are otherwise without legal capacity to act in person, in accordance with an order entered by the circuit court in chancery of Wayne county, Michigan, pursuant to the provisions of sections 702-.45 through 702.49, Michigan Compiled Laws of 1948, approving this agreement and authorizing and directing completion of execution hereof by such successor-trustees and such guardians or guardians acl litem.” After hearing, plaintiffs submitted a proposed «order approving the agreement and authorizing and 'directing its signature by the trustees and the guardians ad litem. Defendant trustees thereupon-filed objections to the proposed order. Their main objection went to the requirement in the order that they sign the agreement. They stated in their objections a willingness to sign the agreement, amended as hereinafter indicated, if the order or decree should approve such amendment by containing in it a provision as follows: Clause in Decree Directing Signature by Trustees "“Trustees Irvin Long and Mack Ryan have no interest in the ultimate distribution of the trust assets when the several trusts expire, except .that they must obey the order of the probate court of Wayne county in respect to such distribution and the division of same between the parties as such court shall determine to be entitled thereto. Wherefore, they are hereby authorized to sign the agreement attached .as exhibit A to the bill of- complaint in the manner following: “ ‘The undersigned, Irvin Long and Mack Ryan, successor trustees under the will of Paul R. Gray,' •.deceased, execute this instrument only to acknowl-' edge notice thereof, and to permit the filing thereof contemplated by Act 249, Public Acts of Michigan of 1921, as amended. The only obligation assumed by them in signing this instrument shall be and is limited to the duty of presenting evidence of this contract, and of the decree entered in Wayne circuit chancery file #600,767, to the probate court of the county of Wayne at the time they file their final accounts as trustees for any trust terminated by the death of the life beneficiary. No rights of any person who may claim a right to the assets of such trust, on termination thereof, shall be deemed created, extinguished, augmented, diminished or altered by such execution hereof by them.’ and upon such signature, this agreement shall become and be effective as to all other parties signatory.” Inasmuch as the burden of trustees’ written objections to the proposed decree consisted of their unwillingness to sign the agreement and, as they profess to believe, thereby assume a possible personal liability, and, further, the relief prayed for in their brief filed on this appeal states that their only interest is to be relieved of the duty imposed upon them by the order below to sign the agreement, our disposition of that subject as hereinafter set forth might be deemed to obviate the necessity for our discussion of questions ■ raised in their brief going-to the existence of statutory authority for and the validity of the agreement and order below. However, the interests of many persons other than the trustees are involved and the validity of the agreement and order ought to be determined here to insure orderly disposition hereafter of the trust and estate. Consequently, we shall touch briefly on sueh questions. Trustees say the circuit court was without jurisdiction to make the order entered because the Dodge act, PA 1921, No 249, was repealed by the probate code, PA 1939, No 288, and, although the legislature undertook to re-enact it, word for word, in the probate code, the title thereof was not broad enough to include a provision conferring Dodge act jurisdiction on a circuit court, so that, in consequence, such provision is unconstitutional. They point out that the title did, however, include a statement that the act was for the purpose of repealing certain unspecified acts, and, therefore, the repeal was valid. The title of the probate code stated, among its purposes, that of consolidating statutes governing the probating of estates and statutes of descent and distribution of property. We think this was broad enough to encompass, among the statutes being consolidated, the Dodge act relating to probating and distributing assets of a decedent’s estate. It certainly is as broad in that respect as is the title language about repeal of certain acts. We cannot agree that under the title the repeal was consummated but the re-enactment failed. The circuit court did have jurisdiction under the probate code and the bill of complaint may be deemed to have been laid thereunder. Trustees challenge existence of a good-faith controversy between signatories to the agreement prior to its making and the filing of this action. This, of course, is made a prerequisite by the statute. However, bad blood, epithets, name-calling, or rancor are not required. We agree with trustees that mere existence of “an academic difference of opinion as to how some provision of a will may or ought to be interpreted by a court at some future time” is not enough to warrant Dodge act proceedings. Applicable, nevertheless, from City of Flint v. Consumers Power Company, 290 Mich 305, 309, 310, is the following: “But the rights to be determined by declaratory judgment or decree may he and perhaps usually are rights not in praesenti, hut rights which are to come into full fruition or which will be fully vested at some future time. If uncertainties and controversies arise between interested parties as to what their respective rights will be when such rights accrue or’ become vested, and to avoid needless hazards or possible losses, it is necessary presently to have decision of such uncertain or controverted rights, then there is actual need of and justification for declaratory adjudication.” Trustees say that desire on the part of the daughters for present court determination of what will happen to the corpus of their trusts at their deaths so that they may the better determine what to do with respect to their own sizable estates by way of making inter vivos or testamentary disposition is not a sufficient basis for this action. Under the circumstances as herein briefly noted, we think it may well be. Pertinent as to facts is the following taken from plaintiff’s brief: “Some time prior to October 31, 1955, Mr. Long (1 of appellant trustees) had discussed with at least. 1 of the plaintiffs the uncertainty arising from the fact that the here pertinent provision of the will of Paul it. Gray, deceased, was subject to various interpretations. Thereafter, prior to the year 1958, each of the income beneficiaries of the 3 trusts retained counsel to advise her and represent her interests. One of the beneficiaries affirmatively asserted the position that upon termination of ‘her’ trust the remainder would be distributable to the heirs of Paul R. Gray, her counsel having advised her that such position was not only tenable but also of probable pecuniary advantage to her because her expectancy was greater than that of her 2 sisters. The beneficiary of at least 1 of the other 2 trusts was opposed to any formula of distribution which would disinherit her husband, and asserted the position that upon termination of her trust, the remainder properly should be distributed to her heirs.” Back in 1956 counsel for the husband of 1 of the 3 daughters, a plaintiff herein, wrote him as follows: “Perhaps the most important consideration for the life income beneficiaries • and their children in attempting to deal with their respective interests under the wil'1 is'thát presented by the possible impact of e’state and inheritance taxes. The amounts held in the trusts are such that, when taken together with other- property, which .the life - income beneficiaries individually own, it becomes not only extremely, difficult but. practically impossible to work out appropriate provisions for the allocation of the burden of such taxes through alternative testamentary or inier-vivos action. “The-'situation presented is not one where the various-possibilities of construction may be anticipated and -appropriately taken care of by alternative provisions in the will of any 1 person. The ramifications of the various possibilities are such that alternative action would be required not only by all 3 of the' life income beneficiaries but by all of their issue as' well and the longer the lives of the life income beneficiaries continue the more complicated the problem of making appropriate alternative provisions becomes. “Finally, if the proper construction of the will is not submitted to a court for determination until after the death of a life income beneficiary occurs, the trustee will be confronted with the necessity of withholding distribution of the trust corpus until that determination is finally made. This could serve to postpone the distribution for a period of years. Such a possibility should not be countenanced if it can be avoided without prejudice to the rights of the interested parties and, as alréady indicated, their rights may as adequately be protected now as at any time in the future.” Trustees say the question of will construction need not now be decided, but can better await determination when 1 of the daughters dies. As said in Sigal v. Wise, 114 Conn 297, 301, 302 (158 A 891): “The remedy by means of declaratory judgments is highly remedial and the statute and rules should be accorded a liberal construction to carry out the-purposes underlying such judgments. One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep, thpm within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly' pursuits of life which are so often the incident's ’ of lawsuits. Fully to carry out the purposes inténded' to be served by such judgments, it is sometimes-necessary to determine rights which will arise or'become complete only in the contingency of some future-happening.” Borchard, Declaratory Judgments (2d ed), pp 422-424, contains an apt statement: ' “The declaratory judgments act necessarily deals with present rights, but it is a present right to have a judicial assurance that advantages will be enjoyed or liabilities escaped in the future. Courts continually declare rights which have not become fixed under an existing state of facts, but are prospective only; they may not, however, be so remote and speculative as to be hypothetical and abstract. “It is nearer the truth to say that the courts will not determine future rights in anticipation of an event that may never happen, although even that generalization is probably a little broad. * * * “The general survey in this chapter will have indicated that the courts no longer hesitate, even in England, to declare legal relations to become active in the future, provided there is a tangible present interest in their determination and a useful purpose is thereby served.” Here, the question of interpretation of the will is not academic. Rights of parties to the agreement are affected directly. The question will not become moot. When the daughters die it must at all events be decided. It will be no different question then than now. To quote the language of Borchard, above, “a useful purpose” will be served by present conclusion of the matter. The knowledge and certainty derived therefrom by the daughters will materially aid them in determining upon inter vivos or testamentary disposition of their own property to or among those of whom the rights of some are affected by the agreement, and also in resolving matters having a real tax significance. As stated in Sigal, present harmonious disposition of the matter as in the agreement provided will serve to “avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of lawsuits” as well as the needless delay of distribution of the corpus of the trust fund at the death of a daughter, if the matter be left to litigation at that late date. There was here such good-faith controversy as is made by the statute essential to these proceedings. While trustees raise no direct question as to whether the effects of the agreement are just and reasonable as to the interests of any represented by fiduciary or guardian ad litem, the statute makes a finding by the court to that effect a prerequisite to its approval thereof. The trial court made such finding, which we think the record warrants and we affirm. In this connection we note the provision in the will that if one of his children should predecease testator, then the trustee should take the share which would have been for the benefit of such deceased child had she lived and divide it into as many portions as there are children living at his death of such deceased child and set it apart for each such child. This squares much more nearly with interpretation of the disputed testamentary language in accord with the life beneficiary-heir theory, to which the agreement gives effect, than with the testator-heir theory. Otherwise testator would seem to have discriminated, for no apparent reason, between the children of daughters surviving him and those of a daughter predeceasing him. The agreement serves to clarify testator’s will, not to substitute a new and different one for it. Coming now to the matter which is the trustees’ chief concern on this appeal, namely, the requirement in the order that they sign the agreement, the following questions are raised by them: (a) Are the trustees necessary parties to the agreement? (b) Does the statute confer power on the court to compel their signatures? (c) May a State, through legislation or court action, compel trustees to assume contractual obligations without violating Michigan Constitution of 1908, art 2, § 16, or the Fourteenth Amendment to the Federal Constitution? (d) Would their signatures impose a personal liability on them? (e) Are they acting equitably in declining to sign? These we consider, together, only insofar as is necessary to our disposition of this phase of the case. The language of section 47 of the act (CL 1948, §702.47 [Stat Ann §27.3178(117)]), providing for the court’s authorizing the trustees’ signatures and that the agreement is made complete and becomes valid and binding upon being so signed and filed, can scarcely be read to mean other than that the trustees’ signatures are required and that they are, therefore, necessary parties. Nowhere in the statute, however, does a legislative intent appear that those in the position of the trustees must, by reason of such signatures, or for any other reason, be made personally liable for damages to any whose interests are injured by the agreement. If the order and agreement were drawn to include the proposal submitted by the trustees in their written objections to the proposed order, absolving them from such personal liability, no problem would remain as to their liability, or the court’s power to require their signatures or the constitutionality of such requirement. We think this the proper course to be followed. With the agreement and order so amended the trustees can have no sound objection to signing, in view of our decision as to questions of validity. Such order may require their signatures, compliance with which the trustees then may only properly avoid by resignation as trustees. The order or decree will be modified in conformity herewith and so affirmed. No costs, neither side having prevailed in full. Carr, C. J., and Kelly, Black, Kavanagh, Souris, Otis M. Smith, and Adams, JJ., concurred. CL 1948, § 702.45 et seq. (Stat Ann § 27.3178[115] et seq.).— Reporter. See, by way of comparison, the authorization to make declaratory judgments or decrees. CL 1948, § 691.501 et seq. (Stat Ann § 27.501 et seq.). — Reporter.	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Souris, J. Defendant intracounty drainage board advertised for bids for a portion of the Twelve Towns Belief Drains. Six bids were received, ranging in amount from $1,370,000 to $1,470,000. The low bidder, Greenfield Construction Company, Inc., omitted from its bid a manhole for which other bidders had included in their bids amounts varying from $2,050 to $6,500. Before acting upon the bids, the drainage board advertised for separate bids for the manhole omitted in Greenfield’s proposal. Only Greenfield submitted a bid for this single item, its bid being in the amount of $2,000. Thereupon, the ■defendant board adopted a resolution providing for the acceptance of Greenfield’s original low bid and its “supplemental” bid for the manhole, the total of the 2 bids being about $17,000 less than the next lowest bid which had been submitted by plaintiff Mole Construction Company, Inc. Mole and its president, a resident and taxpayer of Oakland -county in which the drainage board functions, instituted this suit to invalidate the board’s resolution .and for related relief. After issue had been joined on the pleadings by the filing of defendants’ answer and a reply thereto’ by plaintiffs, a hearing was held on an order to show cause issued upon filing of the bill of complaint and on a motion to dismiss filed by defendants. The chancellor and counsel for the parties apparently considered the matter submitted for determination on the pleadings, the exhibits attached to the pleadings, and briefs filed by the parties. The chancellor dismissed the bill of complaint and plaintiffs have appealed. The defendants have cross-appealed, challenging the standing of plaintiffs to sue. Plaintiffs claim that contracts of the drainage board are subject to the requirements of section 221 of the drain code (CLS 1956, § 280.221, as amended by PA 1960, No 4 [Stat Ann 1961 Cum Supp § 11-.1221]) which requires that contracts be let to the lowest responsible bidder or all proposals be rejected and advertisements placed for new bids. They contend the practice followed by the drainage board in this case subverts the public policy reflected in the procedural requirements of section 221 and should not be countenanced. Had the board followed the requirements of section 221, plaintiffs claim it would have had to award the contract to Mole, the lowest responsible bidder whose bid included all items in the advertised specifications, or it would have had to reject all bids and to readvertise for new bids on the whole project. Were section 221 applicable to the defendant drainage board, we would be required to examine and discuss plaintiffs’ claims in detail. However, the defendant board operates under the provisions of chapter 20 of the drain code of 1956, PA 1956, No 40, as amended (CLS 1956, § 280.461 et seq., as amended [Stat Ann 1960 Rev and Stat Ann 1961 Cum Supp § 11.1461 et seq.]). See Southfield v. Drainage Board, 357 Mich 59. Section 471 of the code, a part of chapter •20, CLS 1956, § 280.471 (Stat Ann 1960 Rev § 11-.1471), merely requires that the drainage board advertise for and receive bids for performance of its construction work. It does not require acceptance .of the lowest bid, nor does it require as the only alternative rejection of all bids received. Section 484 of the code, also a part of chapter 20, CLS 1956, § 280.484 (Stat Ann 1960 Rev § 11.1484), expressly negates the plaintiffs’ claim that section 221 is nonetheless applicable to the defendant board. It provides: “In operating under the terms of this chapter, the several boards and officials shall not be limited by the provisions contained in other chapters of this act and the procedures required under the terms of such other chapter shall not be deemed to be applicable: Provided, That when not contrary to the bxpress provisions of this chapter, any provision or provisions in other chapters of this act may be incorporated by recital or by references into any order or resolution of the drainage board, and when so incorporated shall be deemed applicable to the project under this chapter.” Absent incorporation of section 221 by order or resolution of the drainage board, it cannot be said that the board had to accept the lowest responsible bidder who bid on all items in the specifications advertised or readvertise for the whole project. 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Souris, J. By our long delayed grant of the last of defendant’s many petitions for rehearing of Fitzgerald v. Bixler, 350 Mich 688, we acknowledge candidly judicial errors requiring self-correction.. Unlike Romatz v. Romatz, 355 Mich 81, in which,.we acknowledged and corrected a prior erroneous declaration of law, the errors to which we here confess are errors of procedural fact upon which our prior decision was based. Plaintiff was awarded a jury verdict for $6,000 against defendant, a member of our bar, for conversion of money. After entry of judgment the trial judge, the Honorable Arthur Webster, denied defendant’s motion for judgment notwithstanding the-verdict based upon election of remedies, waiver, estoppel, and res judicata. Defendant then moved for new trial and, after hearing, the judge determined he had erred in denying defendant’s earlier motion for judgment notwithstanding the verdict, set aside the judgment for plaintiff and entered judgment for defendant. Plaintiff appealed following denial, below of a motion for rehearing. In her appeal, plaintiff stated the questions involved as follows : “1. Where one had deposited money with an escrow agent pending transfer of a liquor license to her, does her action against the licensees for specific performance of an alleged agreement to convey the license, which is unsuccessful because of failure to prove an agreement, bar her from recovering the deposit from the escrow agent? “2. Is the affirmative defense of election of remedy raised timely when it is first asserted before the trial judge after the jury has been sworn and empaneled ? “3. Did the defendant sustain the burden of proof that the plaintiff waived or ratified the defendant’s fraudulent conversion to his own use of plaintiff’s $5,000 deposit?” Defendant’s counterstatement of questions involved was: “1. In intervening in the Pinter case and by enforcing her claim to be the purchaser of defendant Swanson’s interest in the business, did plaintiff Fitzgerald make an election of remedies thereby estopping her from bringing this action to recover the purchase price paid by her for that interest in the business ? “2. Does the trial court have the right to correct a mistake made by the trial court, where the plaintiff was allowed to file a belated reply to defendant’s answer, and the defense of estoppel by election of remedies was raised prior to trial, by motion to dismiss, where the court at that time promised the defendant that it will protect his rights and the record in every respect, and that defendant will be heard in reference to said defense of estoppel by election of remedies ?” Only the second of plaintiff’s statement of questions involved was considered in reaching our prior decision. "We concluded that defendant’s answer failed to plead the affirmative defenses of election of remedies, waiver, estoppel, and res judicata; that such matters were first raised after pretrial conference by motion to dismiss filed after the jury was sworn without first amending the answer; and that,, consequently, defendant should not have been permitted by the trial judge to raise those new defensive grounds for the first time in his motion to dismiss and again in his subsequent motions for judgment notwithstanding the verdict and for new trial. ■ While it is true that defendant’s answer did not plead any of' the above mentioned affirmative defenses, inexplicably this Court overlooked the fact that the pretrial statement (reproduced in the record on appeal) included, as part of defendant’s claim, a statement of all facts necessary to defendant’s use of the defenses of election of remedies and estoppel. It also included a statement that both counsel agreed that proofs might be introduced in support of their respective claims as pleaded and as stated in the pretrial statement without further amendment of the pleadings. The pretrial statement, insofar as it is pertinent to this issue, follows: “Statement of Case: “This action was started in chancery and subsequently transferred to the law side, and now is a legal action sounding in trespass. “The plaintiffs [Ann Fitzgerald and her husband, who was later dismissed from the case] contend that on or about January 10, 1949, the plaintiffs herein being desirous of purchasing a 1/2 interest in the bar known as Line Inn retained the defendant, George Bixler, an attorney at law, to represent them in the transaction; that pursuant to the purchase, the plaintiff Ann Fitzgerald delivered to the defendant, George Bixler, the sum of $5,000 and received a receipt executed by his secretary, which money was to be held in escrow until such time as title of 1/2 interest in the Line Inn was placed in the name of the plaintiffs; that she did not. receive the 1/2 interest' nor was the money ever returned to her although demand was made. She now seeks recovery of the $5,000 plus interest to the date of judgment. “When the action was transferred to the law side, the case was dismissed as to the defendant William Swanson. “The defendant, George Bixler, contends and proposes to show that he was not retained by the plaintiffs as an attorney; that he represented one Eugene Sikora, who was desirous of purchasing the 1/2 interest of his partner, William Swanson; that several meetings were held toward such purchase and the defendant Bixler then stated he would not hold any further meetings relative to the purchase until his client Sikora produced the money for the purchase; that subsequently he was told by his client Sikora that his hat-check girl, who was the plaintiff, Ann Fitzgerald, would appear at Bixler’s office with the money. Subsequently, the plaintiff, Ann Fitzgerald, came to the office and delivered the $5,000 to the defendant Bixler and received a receipt signed by his secretary; that at a meeting between Sikora and the plaintiff, Ann Fitzgerald, and Swanson, the defendant Bixler was told by his client Sikora that the money was received as a loan from the plaintiff, Ann Fitzgerald, and under the circumstances the defendant Bixler advised Sikora he should execute a promissory note in her favor for the $5,000, which promissory note was delivered to Ann Fitzgerald at the time; that subsequently Sikora purchased the interest of William Swanson, and that the plaintiff, Ann Fitzgerald, was present when the transaction was consummated. Subsequently, financial difficulties were experienced by Eugene Sikora, and the chattel' mortgagee, Pinter, who sold the place to Sikora and Swanson, foreclosed on the chattel mort gage, 'joining Sikora and. Swanson as defendants. The matter was tried in this conrt and the plaintiffs interpleaded as defendants in that case, and a decree of this court adjudicated all the rights of the parties therein, including the plaintiffs herein. “The defendant Bixler contends and maintains that there is nothing due and owing from him to the plaintiffs, and that the plaintiffs are- now legally estopped from so claiming due to the position taken in the 'action tried before Judge Arthur Webster, ahd sec'oiidly, because Ann Fitzgerald was present when the money was turned over and continued employment after Swanson left the business; “Issues: “The issues are questions of fact’and law as outlined above. “Pleadings: “Counsel indicate they are satisfied with the pleadings, and each concedes that the.others, without further amendment to the pleadings, may introduce competent proofs in support of their respective versions of the case as presently pleaded and herein stated. * * * ... “Exhibits: “The receipt executed by the '^defendant Bixler’s secretary is admitted without further proof. “The chancery action tried before Judge Arthur Webster is likewise admitted. ‘' [The chancery action referred to is a suit which resulted in decree awarding this plaintiff a 1/2 interest in the Line Inn for her $5,000 and which is the basis for defendant’s claim she elected her remedy.]” The fact is that the affirmative defenses relied upon by defendant in his motion to dismiss and in his post-judgment motions, including election of " remedies] were legal issues-.in. the case by virtue of the pretrial statement. Our. prior conclusion that those mpfipns should have been denied because based upon new affirmative defenses was, therefore, erroneous.' Mich igan Court Rule No 35, § 4 (1945), Wayne circuit’s then current local Rule 1(g) of Part 2 (identical to its present Rule 32 [h] ). See, also, Kolton v. Nassar, 352 Mich 337, and Hyma v. Hippler, 365 Mich 127. Furthermore, defendant’s motion to dismiss made at the commencement of trial was based squarely upon the defense of election of remedies. Judge Webster refused to decide the motion at that time and expressly stated to defendant’s counsel, on the record, that he would decide the motion later and that defendant’s rights in that regard would be protected. When Judge Webster finally granted defendant judgment'notwithstanding the verdict, he quoted from the transcript what transpired at the time defendant sought dismissal on the ground of election of remedies and properly concluded that the court had given defendant its assurance that his affirmative defense would “not be foreclosed because of a technical absence of a formal plea of election of remedies.” We now conclude that defendant was entitled to rely upon the affirmative defense of election of remedies, that it was properly raised in his motion to dismiss which Judge Webster reserved for decision, and that he was entitled to raise the defense in his subsequent motions for directed verdict and for judgment notwithstanding the verdict. Another ground upon which we previously decided the trial judge erred in entering judgment for defendant notwithstanding the verdict was our mistaken belief that the record failed to disclose that a motion for directed verdict had been made by defendant during trial. Had we been right, then of course failure to move for directed verdict during trial, in this case, would have barred defendant from moving for judgment notwithstanding the verdict. Court Rule No 37, § 8 (1945). In re Calhoun Estate, 346 Mich 227, 232. Our conclusion that no motion for directed verdict had been made during trial was apparently caused by a weird typographical blunder by which two lines of type which should have appeared at the bottom of one page of the calendar entries in the printed record on appeal appeared, instead, at the bottom of the opposite facing page of calendar entries. Unfortunately, the transposed lines of type were the entry for the motion for directed verdict crucial to defendant’s subsequent motions. The original typewritten calendar record contains entry of this motion in its proper date sequence and the original motion appears in the file in its proper page-numbered sequence. Furthermore, reference is made to the motion in the trial judge’s opinion in which he first denied defendant’s motion for judgment notwithstanding the verdict. However, absent reference to that motion in the-printed record on appeal at the place in the calendar entries where it should have appeared and absent a copy of the motion in the printed record, we concluded no such motion had been made. In fairness to counsel for the parties, it should be noted that the statements of questions involved did' not require for their resolution reference to the: motion for directed verdict and failure to print a copy of it in the printed record on appeal was entirely justifiable. It became important only when this Court injected into the appeal a new procedural issue not claimed or briefed by plaintiff-appellant. It is regrettable, however, that the printed calendar entries were not proofread more carefully by counsel.' Had they been, the typographical mistake readily would have appeared and our error certainly would have been avoided. .It should also be mentioned that not until shortly before we granted rehearing did defendant supply the Court with a transcript, certified by the court reporter, of a portion of the proceedings below from which it appears that the motion for directed verdict was argued to the trial judge and taken under advisement by him. The net result of all of this is that almost 5 years •after our decision, defendant has succeeded in convincing us that we erred on both 'procedural grounds upon which our prior decision was based and, upon present consideration of the substantive merits of plaintiff's appeal, that our prior order of reversal should be vacated. Judge Webster was right and, on this rehearing, we affirm his judgment for defendant notwithstanding the verdict. As has been noted earlier, Judge Webster first denied defendant’s motion for judgment notwithstanding the verdict. Later, defendant moved for new trial and upon considering that notice, the judge concluded that he had erred in refusing to enter judgment for defendant notwithstanding the verdict. Instead of granting a new trial, he thereupon set aside the jury’s verdict and entered judgment for defendant. He did so because he concluded, and we agree, that plaintiff’s right to sue defendant was barred by a prior election of an inconsistent remedy. It will be recalled that in this suit plaintiff maintained, both in her declaration and in the above quoted pretrial statement, that she was'entitled to the return of the $5,000 she had given- defendant because the purchase for which it was to be used had not been consummated.- However, prior to starting this law action, plaintiff had taken an entirely different position in connection with the same purchase transaction in a chancery suit in the same court. By her voluntary participation in the chancery: 'suit, in which it was decreed she had acquired a 1/2 interest in the Line Inn tavern, Judge Webster correctly concluded that plaintiff was thereafter barred by such election of remedies from contending in this action that she was entitled to return of the purchase money because the purchase had not beén completed. The chancery suit, to which reference was made in the pretrial statement as quoted-above and in which plaintiff intervened, was between one Pinter and Swanson and Sikora. Pinter held a chattel mortgage on the personalty of the Line Inn and he had an agreement from Swanson and Sikora, chattel mortgagees, to reassign the liquor license to him upon default in payment of the sum secured by the mortgage. He was seeking enforcement in chancery of his rights under the mortgage and the agreement. Plaintiff Fitzgerald’s sworn pleadings filed in the Pinter suit, included in this record on-appeal, disclose that she then claimed, as she still does, that the $5,000 she gave defendant Bixler was to be applied to the purchase price of a 1/2 interest in the Line Inn and she prayed for an adjudication in the-.Pinter suit of her interest in the tavern. Both plaintiff and her husband worked at the tavern from at least January to June of the year in question. The payment to defendant wás made in March and the business collapsed in June. The chancellor found that plaintiff Fitzgerald had succeeded to a 1/2 interest (Swanson’s former share) in the tavern by purchase, as she claimed,, apd decreed that she and Sikora were entitled to-- all its assets after, however,. specific performance of the Swanson-Sikora agreement to reassign the liquor license to Pinter. Unfortunately, the physical assets of the tavern had been sold at auction to pay tax obligations incurred during operation of the tavern, thereby leaving nothing of value for plaintiff’s interest. No appeal was taken from the chancellor’s decree. We have not found a similar case in our reports. However, there are many cases we consider somewhat analogous in which a vendor or vendee of land or personalty is required to make a choice between .•affirmance or disaffirmance of the transaction; he cannot choose both. See, generally, Kefgen v. Coates, 365 Mich 56; Welling v. Dave’s Cut Rate Drugs, 362 Mich 389; Beckley v. Cotton, 352 Mich 19, and cases cited therein. • Plaintiff asserts here that the defense of election of remedies does not apply where a mistake in remedy has been made. But, the mistake made by plaintiff is not such as is referred to in the very cases cited by plaintiff. Among those cases are McLaughlin v. Austin, 104 Mich 489, and Clements v. Constantine, 344 Mich 446, in both of which the mistake referred to was a misconception of remedy in which recovery could not he had because legally the remedy did not exist. Here, the chancellor’s decree gave plaintiff what she prayed. Her remedy in chancery was not inappropriate; that the remedy she legally achieved in chancery has proved of no value does not constitute a mistake relieving her of her election. See Mertz v. Mertz, 311 Mich 46. Other claims made by plaintiff to escape the results of her election of remedies do not merit discussion. Because of our decision that plaintiff was thus barred from maintaining this suit, it is not necessary to consider the last question raised by plaintiff concerning the proofs. Judgment below affirmed. Defendant may tax costs. Carr,' C. J., and Kelly, Kavanagh, Otis M. Smith, and Adams, JJ., concurred with Souris, J. Dethmers, J., concurred in the result. Since grant of rehearing defendant has died and his estate’s administrator has been substituted. Eor convenience, we will omit further reference to the administrator in this opinion. Amended on July 1, 1958, after trial of this case. 352 Mich xv-xvi. See Honigman, Michigan Court Hules Annotated, 1957 Supp, p 251, and 1959 Supp, p 301. — RepoBteb. As amended. See 335 Mieh lxii. — Reporter.	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Campbell, C. J. A writ of certiorari was issued by the circuit court for the county of Wayne to review a conviction in the recorder’s court of Detroit for an alleged violation of a city ordinance. The recorder applies to us for a mandamus or prohibition to prevent the circuit court from exercising this jurisdiction. The whole question turns on the inquiry whether the recorder’s court of Detroit, acting in the particular case in controversy, is a court inferior to the circuit court. The Constitution of Michigan, in terms, gives to the Supreme Court a general superintending control over all inferior courts, with power to issue writs of error and other writs named, both original and appellate. Art. 6, § 3. By section 8 of the same article the circuit courts are given general civil and criminal jurisdiction, except as otherwise provided, and appellate jurisdiction and supervisory control over all “inferior courts and tribunals ” within their jurisdictions. By section 1 “the judicial power is vested in one Supreme Court, in circuit courts, in probate courts,-and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature in cities.” By section 15 the Supreme, circuit, and probate courts are declared to be courts of record, and required to have each a common seal. A preliminary question is, what is meant in this Constitution by the term “inferior courts?” The relator’s argument is largely based upon what counsel suppose to be the common-law definition of an inferior court, which always means a court which is not one of the four great courts of the realm; that is, the court of chancery and the three great common-law courts sitting at Westminster. Toml. Law Dict. “ Inferior Courts.” Another less accurate distinction is found in the distinction between courts of record, whose records establish themselves, and are valid judgments in themselves, and courts not of record, proceeding under special conditions, whose jurisdiction is not presumed. The recorder’s court is a court of record by name, and, so far as it has compion-law powers, its records are treated as common-law records. But it also has special and peculiar powers, where its records are open to the more or less limited objections allowed by all jurisprudence in such peculiar eases. And it is very well known that in England there have always been many courts, not sitting at Westminster, whose records are respected. The term “inferior” is not of one single meaning in law, but is used in different senses. Under the Constitution of the United States, Congress has no power to create courts which are not inferior to the Supreme Court. The cases cited by counsel from the decisions of that court do not claim that the circuit and district courts are not inferior to the Supreme Court, but merely that, being courts of general powers and of record, they are not inferior courts in the sense in which that word is sometimes used to distinguish courts among themselves after their kind. In England, error lay to the common pleas out of the king’s bench, making the former, in our constitutional sense, inferior to the latter, while both ranked as superior courts. So all of them were subject to review by the exchequer chamber, and that by the house of lords. Our American constitutional use of the word refers to relative rank and authority, and not to intrinsic quality. Under our own Constitution, as under that of the United States, the Supreme Court could have no appellate power or supervision over the circuit courts except on this idea that they are inferior to it, for none but' inferior courts are subjected to it, and the jurisdiction of our circuit courts equals that of the English superior courts. And if the argument for the secondary English rule is valid, resting on the distinction between courts of record and others, both circuit and probate courts being declared courts of record, and not in terms made subject to the Supreme Court by the Constitution, except as by their nature inferior to it, no supervisory power could exist in either Supreme or circuit courts over the probate courts. Yet the latter have been made subject to the circuit courts, and continue so, and their powers are subject to legislative control. They are not common-law courts of record. There is, however, a significant difference between the Supreme and circuit courts in regard to the scope of their supervisory jurisdiction. The circuit court has not been given any express power to issue writs of error, which are the only writs adapted to reviewing ordinary common-law judgments. In the charter of Detroit the only proceedings in the recorder’s court expressly provided for as appealable to any other court are required to be removed to the Supreme Court “ by writ of error, or other process; in the same manner that like proceedings may by law be removed to the Supreme Court from the circuit courts of the State.” Local Laws 1883, p. 641. On examining the charter, it will be found that these courts have no like proceedings with the circuit courts, except in common-law cases. Special proceedings are always statutory, and must be conducted where the statute places them, and the circuit courts have no jurisdiction over ordinance cases under their original powers. The charter unquestionably puts the criminal business and the street and alley cases expressly beyond the jurisdiction of the circuit court, either original or appellate. The real controversy is whether the fact that a part of its jurisdiction is exempt from circuit court supervision prevents the recorder’s court from being inferior to the circuit. The primary purpose of the recorder’s court was to serve as an agency of the city in enforcing by-laws and ordinances and other municipal business. It succeeded to the mayor’s court, which, by the charter of 1827, if not earlier, was made a court of record, and vested with all of the ordinary powers of the present recorder’s court, except its jurisdiction over crimes. By that charter, and amendments to it, the mayor’s court was given a very large common-law juris diction of all civil cases arising within the city in which the city was a plaintiff, and those cases were required to be tried according to the rules governing the circuit courts. Act of April 13, 1841, § 3. Nevertheless, in spite of its character as a court of,record trying and adjudicating these common-law issues, without reference to their magnitude, which might include many thousand dollars,,and which in their nature were of as high a nature as indictments, an appeal lay to the circuit court of Wayne county, subject to the rules governing appeals from justices. Act of 1841, § 4. In Welles v. Detroit, 2 Doug. 77, an attempt was made by the city to prosecute a debtor by attachment proceedings in the mayor’s court, claiming that in common-law city causes it had the same jurisdiction as the circuit; but the judgment was taken directly to the Supreme Court by certiorari, and not by writ of error, where it was held that the civil jurisdiction of this court was limited as expressed, and could not be extended by construction so as to embrace this extraordinary remedy, which in terms was allowed to circuit courts by name, and the proceedings were quashed. Under the old Constitution, which did not define or grant jurisdiction to the circuit courts, but left all but the Supreme Court to be provided for at discretion, the circuit courts had their whole appellate power provided for by statute. The mayor’s court was not only put under the circuit court, but its judgments were all open to appeal and retrial on the merits. The Supreme Court alone could issue writs of error and certiorari under its common-law jurisdiction. Under the Constitution of 1850, as already seen, the circuit courts were empowered to issue writs of certiorari in the exercise of their supervisory control. In the circuit court acts, no provision was made for the writ of certiorari, except in special cases, and it seems to have been supposed the power was entirely statutory. But when the question was brought into this Court, it was held that the right to issue a common-law certiorari, being given by tbe Constitution, could, not betaken away by statute, and existed in the circuit courts as an inherent power. Thompson v. School District, 25 Mich. 483; Taylor v. Judge of St. Clair Circuit, 32 Id. 95; Merrick v. Township Board, 41 Id. 631; Wilson v. Bartholomew, 45 Id. 41. In 1857 the charter of Detroit was revised and re-enacted, and then, for the first time, the recorder’s court was provided for, to succeed and carry out the po'wers of the mayor’s court, substantially as before; but it was also to have exclusive jurisdiction for the trial, but not for the finding of indictments, of all indictable crimes committed in the city of Detroit. In the trial of these cases, and in reviewing them, the general laws of the State, as provided for the circuits, were made by the charter to apply, and, as already suggested, the removal to the Supreme Court was to be in the same way provided for like cases in the circuit courts. Charter, c. 6, § 24, and subsequent sections passim. In this charter the system of procedure for other cases was. otherwise regulated, and the jurisdictions were kept separate, not only in beginning suits and issuing process, but also in employing city officers for city cases, and the local criminal officers representing the ordinary criminal authority for criminal cases. In a recent revision of the charter, in which these matters were partially confounded, so as to give, as was-claimed, exclusive and different methods of prosecution and complaint to the recorder’s court, we held there was no such distinction, and the amendment, as far as attempting it, invalid, People v. Judge of the Recorder’s Court, 59 Mich. 529. There can be no doubt that, at least up to 1857, the mayor’» court was legally regarded as an inferior court, subject to the review of the circuit. It is equally clear that the recorder’s court is the same court, with an enlarge 1 jurisdiction. It is. also apparent that, in giving this broader jurisdiction, not ■only were its methods and conditions in the new jurisdiction prescribed, but special provision was made for the review of the judgments rendered under it. No provision whatever is ■expressly made for the review of the action of the court under the ordinances. It was claimed, in a litigation that arose in an ordinance ■case several years ago, that the section which gives jurisdiction on appeal to the Supreme Court over convictions, in analogy to circuit court cases of similar character, constructively applied to convictions under ordinances. But in the several controversies which came up consecutively between ■the city and the same citizen for an alleged illegal closing of an alley, the double character of the recorder’s court, and of appellate proceedings from it, was pointed out and distinguished. In People v. Jackson, 7 Mich. 432, respondent had been convicted by the recorder’s court, under a regular criminal information, for closing the alleged alley, and the case was properly brought up before sentence, and decided here on the exceptions. But the case was held to involve no criminal ■offense, and the conviction was set aside for that reason. Thereupon the city prosecuted _ him under an ordinance intended to cover the case, and he was again convicted. The recorder undertook to reserve the questions for consideration by this Court, as could have been done under the criminal practice, and reliance was had on the clause of the charter before referred to as regulating removals to this Court. The Court held that, when he tried cases under the ordinances, he was acting merely as a municipal officer, enforcing regulations of which we could not take judicial notice, and that no •cases could be reserved except where he performed the functions of a circuit judge under the laws of the State. The proceeding was therefore dismissed. People v. Jackson, 8 Mich. 78. A second attempt was made in the same case to bring it up on exceptions before judgment. People v. Jackson, 8 Mich. 110. This was dismissed on the same ground, and the double character of the court was again fully discussed, and the charter construed, as before, as keeping the two jurisdictions separate. It was brought up a third time on writ of error (Jackson v. People, 8 Mich. 262), and dismissed again as not subject to writ of error. It was last brought up on certiorari (Jackson v. People, 9 Mich. 111), when the conviction was quashed for excess of jurisdiction in attempting to decide by a municipal court a controversy which involved rights that could only be determined by the laws and courts of the State. We have found no authority for holding that a municipal-court changes its relative position to other courts by becoming invested with new powers which those courts cannot, review. Such instances are by no means rare, and it has always been found possible to keep the powers distinct. All-common-law courts of record in the United States have been given certain powers under the naturalization laws of Congress, but this has never been supposed to bring that jurisdiction under the control of State appellate courts. The Supreme Court of the United States has recognized the existence of special powers granted to circuit and district courts as outside of its judicial cognizance. United States v. Ferreira, 13 How. 40. In Auditor General v. Pullman Palace Car Co., 34 Mich. 59, where the circuit court of, Ingham county was given jurisdiction of appeals from the Auditor General in certain cases, we held that the proceeding was aside from the ordinary judicial jurisdiction, and therefore not subject to our review in any shape.- In Southwick v. Postmaster General, 2 Pet. 442, the case was quite parallel with this. There a suit was brought in a district court of the United States, having circuit court powers at common law, and judgment was rendered, which was removed regularly by writ of error to the circuit court of the same district, where it was affirmed. A writ of error was then taken from the circuit to the Supreme Court. Under the act of Congress, the district court had been empowered to act in such cases either as a district or a circuit court, and it did not appear on the record in which capacity it acted. If acting as a district court, the action of the circuit court on error could not be reviewed by the Supreme Court. If acting as a circuit. court, the decision of the regular circuit court, on error from it, could be reviewed by the Supreme Court. Chief Justice Marshall held it must be presumed to have been acting as a district court, and so the writ of error was dismissed. He said: “Had the court for the Northern district of New York possessed no circuit powers, it could still have taken cognizance of this cause. By conferring on it the powers of a circuit court, Congress has added nothing to its jurisdiction in this case. In taking cognizance of it, a district court has exercised the ordinary jurisdiction assigned to that class of courts. No extraordinary powers were brought into operation. We cannot say that a district court, performing the appropriate duty of a district court, is sitting as a circuit court because it possesses the powers of a circuit court also.”' The fact that the recorder’s court acts as a State criminal court in criminal cases does not make it any the less a city court in city cases. It has already been decided that these ordinance cases involve not State law, but city law, and must be reviewed on certiorari. So far as these cases are concerned, the charter has not been substantially changed, and there is no reason to suppose the Legislature meant any change. The remedy by appeal has been dropped very wisely, as State courts are not designed to act as municipal courts; but no interference has been had to provide any other remedy, so that the certiorari is the only one to boused. The review of such cases is as appropriate for the circuit court now as it was prior to 1857. It is plain enough that a municipal court is presumptively inferior to a circuit court, so far as its jurisdiction, is not of equal character. We can see no difficulty whatever in separating the two jurisdictions. That separation exists in the circuit courts themselves, between law and equity, between civil and criminal jurisdiction, between original and appellate jurisdiction. We think the certiorari was properly issued, and the application of relator must be denied. No costs will be awarded, as relator acts officially in an entirely proper effort to have his duty defined. The other Justices concurred.	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Chahplin, J. On a petition filed by relator, we granted an order requiring the respondents to show cause why a mandamus should not be granted requiring them to approve of the sureties in a certain liquor bond to enable the relator to engage in the business of keeping a saloon in the township of Sparta, Kent county, Michigan. The penalty fixed by the township board for bonds of this kind was $6,000. The law requires at least two sureties, who shall each justify in the amount of the penalty over and above all indebtedness, exemptions, and liability on similar bonds. The law also authorizes and requires the township board to pass upon the sufficiency of the bond presented. The two sureties named in the bond were Hollis S. Hilton and Anthony W. Boorom. The board were satisfied with the sufficiency of Hilton as surety; but, after investigation and hearing, at which the relator appeared by attorney, they decided not to approve the bond on account of the insufficiency of the surety Boorom. The relator sets up in his petition that the conduct of the board in refusing to approve said bond was a willful disregard of his rights, and by their conduct and decision the statute under which he presented such bond was absolutely ignored by the board; that the surety Boorom was sufficient, and worth more than $6,000 over and above all exemptions and indebtedness;' that the act of the township board in refusing to approve said bond is against the just rights of the relator, and that it was the duty of the board to approve said bond. The respondents answered the petition at great length, setting forth their action and investigations; and they deny that said Boorom is or was a sufficient surety at the time the board rejected the bond for that reason; and they deny that his sufficiency was known to every member of the board. On the contrary, they assert that every member of said board believes and avers that said Boorom was and is insufficient pecuniarily to become said surety on said bond, and that said board ought not to approve him as such. They deny any intention or purpose willfully to disregard the just rights of the relator, and they disavow any intent or purpose to unnecessarily hinder and delay or to annoy said relator, or to deprive him of any of his just and legal rights; and say that said board have been from the beginning, were at the time of the hearing, ever since have been, and now are, ready to accept and approve a bond with sureties pecuniarily responsible and sufficient; and that respondents have always been and are now willing to approve such bond, and to perform their duty under the statute in this behalf, and have faithfully sought to so perform their duty, and do not claim, and have not claimed or exercised, the right to exclude said relator from engaging in said business in said township, providing he complies with the requirements of the law; and that the members of the said board have sought, in all their proceedings in this matter, only to ascertain whether or not surety Boorom was pecuniarily responsible and sufficient, and whether or not it was their duty to approve said bond; and that said board believed and now believe that said Boorom is not pecuniarily responsible and sufficient, and is not worth in his own right, at a fair valuation, $6,000 over and above •all liabilities and exemptions from sale on executions; and, ¡so believing, they submit that said board ought not, and ■could not conscientiously, with due regard to their duty, Approve said bond. The answer fully meets the allegations of the relator’s petition, and raises a direct issue as to the surety Boorom’s pecuniary responsibility and sufficiency as such surety, and ■denies that he is worth $6,000 over and above his liabilities And exemptions. The relator did not ask to have any issue ■submitted to a jury, and the answer must be taken as true ■whenever it militates against or comes in conflict with the ■averments contained in the petition. This is not an appellate proceeding. We are not called •upon to decide whether, from the record and the showing made by Boorom, he was in fact worth more than $6,000 over And above his indebtedness, liabilities on other similar bonds, And exemptions, or whether he was not. What we are called upon to determine is whether the respondents have acted in good faith, and not arbitrarily or unjustly. We are only concerned with the facts so far as they throw light upon the conduct of the board in rejecting the bond. "Unless the facts Are inconsistent with statements of good faith and honest discharge of their duty contained in their return under oath to ■us, we must give credit to such return. Counsel on each side have reviewed the facts embraced in ■the petition and return; and from them, on the one side, they make out that Boorom’s property footed up more than ■$6,000, and even as high as $10,000; while on the other side, ■from the testimony and facts viewed in the light which the ■respondents took, his property amounted to less than $6,000. We cannot say that there is such a preponderance of testimony in favor of the relator’s conclusions as shows conclusively or even probably that the members of the board were actuated by illegal or improper motives in rejecting the bond. They were called upon to exercise a sound legal discretion, and this called for the exercise of judgment based upon the weight of evidence. From this evidence they tell us that they did not believe that Boorom was pecuniarily -sufficient. From the whole record we cannot say that the respondents have acted arbitrarily or capriciously, or with -a design to evade the law, and therefore the writ must be refused. Campbell, O. J., and Sherwood, J., concurred. Morse, J., did not sit.	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Sherwood, J. The respondent was prosecuted and convicted in the police court in the city of Detroit for stealing $2.75 and a bottle of brandy, and the judgment was affirmed ■on certiorari in the Wayne county circuit Court. The case is brought into this Court by writ of error. The respondent was found guilty on a trial had by jury in the police court. But two questions require consideration in this case. First, was it necessary that the prosecuting attorney should have authorized this prosecution, or that the complaining witness should have given security for costs? How. Stat. § 7135 a, was not intended to limit or curtail the jurisdiction of justices of the peace in criminal cases. The object sought to be accomplished by that statute was to guard against the indiscretion, frequently indulged in by magistrates, in permitting legal proceedings to be instituted against parties for crime without any previous inquiry into the circumstances. While an omission to secure an order from the prosecuting •attorney before issuing process in criminal cases might subject the magistrate to censure, and possibly, in some cases, to pecuniary injury and official embarrassment, it was never intended to deprive the court of jurisdiction in any case ; and whether the complaining party ha3 given to the people security for costs in the case is a subject in which the respondent is not especially interested, and, if the people are satisfied to prosecute without such security, there is no reason why he should complain. The prosecuting attorney appeared and prosecuted the respondent before the police court, which is certainly sufficient approval by him. The second question suggested for our consideration is. whether there was or was not sufficient testimony to allow the case to go to the jury. Upon this question we have no-doubt the police justice ruled correctly. At the close of the trial before the police court, counsel asked for the respondent’s discharge on the ground that the people’s testimony did not make out a case against him. The police justice in his return says that upon the trial John Kestel was sworn, and testified that he was the j roprietor of a drug store at Detroit, and that on the fifth day of July, at about 12 o’clock, respondent came to his place and asked for brandy, and told him to send a quart to Mrs. Howard’s, 690 Cass avenue, and with it change for $5; that, by reason of such request, witness sent a boy with the brandy and change, who shortly returned with a receipt reading as. follows: “June 27, 1886. “Received from Nat’l Bank, ten dollars. “$10. G. York.” Indorsed on back, “G. York.” Hedges, the boy sent with the brandy and money, testified that he was lá years of age, and was asked by Kestel to go on an errand, in the presence of a man in the store whom he positively identifies as respondent, and as the man who wanted the b'andy sent to 690 Cass avenue. This witness also testifies that, before he reached Cass avenue, respondent met him and told him the place to go was on Second avenue, and together they started'for that street, and. before reaching it, he told witness he would carry the “goods” himself; that, thereupon witness gave i\sspondent the brandy and money, and took from him the receipt before mentioned, which he delivered to his employer. A bottle of brandy of the same description as that taken from the boy was subsequently found at respondent’s room in the hotel. If the felonious intent existed, the taking from the boy, under the circumstances, and the carrying away of the property by the respondent, were sufficient. We think there was sufficient evidence of facts and circumstances shown to submit the question of intent to the jury. The leading question put to the witness Hedges, for the purpose of identifying the respondent, was relevant and competent, and its leading character, while objectionable, was not, in view of the testimony given by the same witness previously upon that subject, erroneous. The judgment below must be affirmed. The other Justices concurred.	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Campbell, C. J. Eelator, a British company, applied to the Insurance Commissioner for a license to transact business in this State, which he refused to allow without a deposit of securities to the amount of $100,000, which is required by statute where no similar deposit has been made at such other place as is contemplated by law. Eelator showed proper evidence that such a deposit had been made in the state of New York upon the conditions required by our legislation. The only question is whether, under the statute which governs this case, and which was fully discussed on the argument, a deposit in New York is a sufficient compliance. The statute (Act No. 337, Laws of 1881, p. 379) requires a-deposit of at least $100,000 with the State Treasurer of this State, or with the chief financial officer or commissioner of insurance of the state where such company or association is-organized, duly assigned to such officer in trust for the benefit of all policy-holders. Said deposit shall consist of bonds or stocks of the United States, or of the state where such company or association is organized, or of bonds and mortgages on improved unincumbered real estate worth double the-sum loaned thereon. It is not disputed that the statute designs to allow licenses-to companies formed under the laws of foreign governments, as well as to those created in other states of the Union. They are all covered expressly by more than one section of' the statute. But the right to rely on a deposit of securities- elsewhere is in terms confined to deposits in the state in which a company is “organized.” It is not claimed that this relator was organized in New York; but it is insisted that obtaining authority to do business there satisfies sufficiently the essentials of organization. It is further claimed that the insurance department has practically construed this statute by licensing companies on that theory, and that the present; commissioner had done the same thing until his attention was directed to the question in such a way as to lead him to doubt its correctness. Much respect is due to practical construction when it does no violence to language, and has been so long continued as to show general acquiescence; but in this case the present refusal is from the same officer whose predecessors have given the other construction, and who has refused to recognize it. The law has not been in force long enough to make it evident that this construction has been brought home to the attention of the various departments of the government, and approved by their acquiescence. It would require a very clear case of practical acquiescence to authorize us to compel the head of a bureau to follow precedents which he does not himself regard as binding, unless they are at least so harmonious with the language of the law as to create no repugnánce to it. We cannot avoid the necessity of looking at the statute itself. When we do this, we find that it does not group together under one name or class all companies not originating in Michigan, but divides them more than once into companies of other states and foreign companies. The use of the word “states” is manifestly confined to our own communities within the United States. In one sense, nations are often and properly designated as states; but where companies formed under the laws of foreign governments are mentioned as distinct from companies of other states, we cannot suppose the repetition and distinction are meaningless. If no differ •ence was intended to be recognized, the language used is very .inappropriate. When, after mentioning both of these classes, the Legislature proceeded to provide that companies which had deposited securities to the amount of $100,000 in the proper custody in the states in which they were organized need make no deposit here, we must assume the omission to cover foreign •companies by this exemption was intentional. We may not be able to tell just what reasons influenced the Legislature, ■but it is easy to see differences which might have been considered. The object of providing the deposit is to secure a fund to which our citizens may have convenient access for indemnity for their unpaid losses. A deposit abroad would be of no practical use to them in most cases, because not readily accessible. If we give the word “state” a sense which will include a foreign nation, the language of the •statute would require the deposit to be made in the foreign state to which the company belonged. That would not help this relator, because the deposit is in New York, and not in Great Britain. It is therefore claimed that what the statute means is that the deposit should be made in another American state, but that the word “organized” may mean licensed to do business. This is not a natural meaning. A British company may be licensed to do business in every state of the Union. Under the interpretation claimed, it might have a single deposit in any of the states. So a New York company might be licensed in every state. This same construction would allow the deposit of that company to be made anyr where else as well as in New York. But if the statute said nothing about foreign companies, no one would imagine that ■an American company could be treated as organized anywhere but in its home state. Language which is so plain and definite when so applied cannot be made to mean something else, and applied to objects which in no way fulfill its •condition?. If there were no way in which foreign companies could' otherwise get a license here at all under this statute, which expressly covers them, we might be called on to devise some-construction which would save the whole statute. This is a. ratüer dangerous process, and, if allowable at all, can only be made so by necessity. But here there is no such necessity. They can get it by making a deposit here. The conditions on which companies can be exempted from this general rule-are expressly confined to American companies, and can reach no others. It is not our province to speculate on the possible views-which may have influenced the Legislature. It was within their discretion to impose these conditions. If they acted inadvertently, they can very easily remit them. But we have-no such power. The mandamus must be denied. The other Justices concurred. See Act No. 272, Laws of 1887, amending section 2 of Act No. 237, Laws of 1881, by making provision for such cases.	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Champlin, J. The original bill of complaint in this case was filed by Elizabeth Waterfield against the defendant for ■the purpose of enforcing a vendor’s lien for a part of the unpaid purchase money upon the sale of the east half of the south-west quarter, and the west half of the south-east quarter of the north-west quarter, of section 3, in township 5 north, range 9 east, being in the town of Brandon, Oakland county, Michigan. It stated that on the tenth day of June, 1875, she was the •owner in fee simple of the above land, and on that day sold and conveyed it to defendant for the price of $600, $400 of which was paid down, and defendant was to have five or six years in which to pay $200 with interest at 10 per cent per annum; that no security was taken therefor, but complainant was to hold a lien on the land for said unpaid purchase money; that on or about the sixth day of May, 1876, defendant paid one year’s interest. It charges that no part of the said $200 has been paid, nor the interest other than that above-stated; and that she has not waived nor relinquished her vendor’s lien for the unpaid purchase money. It prays fora foreclosure and sale to satisfy such lien. The defendant answered, and admitted her ownership and sale, but denied-that the purchase price was $600; averred that it was only $400, and was fully paid down at the time-of sale. Proofs were taken, but before decree defendant ascertained that complainant never owned the parcel last above described, comprising 20 acres of the land alleged to belong to complainant, but the same belonged wholly to James Waterfield, the-husband of complainant. The deed put in evidence showed that it was executed by James Waterfield and Elizabeth Waterfield, his wife, and contained a covenant that they were well seized in fee simple of the granted premises. The defendant petitioned the court for leave to amend his answer so as to deny instead of admitting that complainant was-the owner in fee simple. This was granted. The complainant then petitioned the court for leave to amend her bill of complaint, so as to add the name of James Watei field as a. co-complainant, which was also granted, and an amended bill was filed in which it is alleged that on the tenth of June,. 1875, they owned in fee simple the lands above described. The rest of the bill is substantially the same as the original bill, except that the necessary changes are made to adapt it to the two complainants instead of one. The record does-not show that any answer was filed to this amended bill, but it is presumed that the amended answer stands for answer to-the amended bill. No joint ownership by complainants in the lands conveyed was shown. On the contrary, it appears that they were not the owners in fee of the lands conveyed, but one of them ■owned 80 acres and the other 20 acres of such land, and there is no proof of what the purchase price of each parcel was. It also appears that, immediately upon the deed being exe-cuted, defendant went upon the premises described in the ■deed, and built a house thereon, and removed therein with his wife, Jane Wilber, and that they have ever since occupied and used it as a homestead. The contract of purchase being entire, according to complainants’ claim, and no part •apportioned to the respective owners, and there being no evidence of the relative value of each parcel at the time of the sale, and the bill alleging a joint ownership, this bill.to ■enforce a vendor’s lien cannot be maintained. But there is still another reason why there is no lien in this case. In Dunton v. Outhouse, ante, 419, we said that, when a vendor resorts to a court of equity to declare and enforce a vendor’s lien, it is necessary that he allege the contract of sale with reasonable certainty, and that the consideration and terms of payment must be alleged and clearly proven. Mowrey v. Vandling, 9 Mich. 39. The bill alleges that the money was to be paid in five or six years, at 10 per cent, interest, which is uncertain in itself; and the proof was that defendant was to have six or seven years in which to pay. Complainant James Waterfield testifies that defendant paid him, on May 6, 1876, $30 to apply on interest. The ■defendant denies this, and Mrs. Wilber testifies that they loaned Mr. Waterfield $30, and afterwards he repaid it, or .a portion of it, by allowing her to trade upon his credit at a certain store. Complainant also testifies that, about a week before Christmas in 1876, he sent John Walter to fetch defendant to his blacksmith shop, and that he did so, and that complainant then said to defendant: “William, I have sent for you to see if you could pay me any of that money, — the two hundred dollars that is back on the land, or interest.” He said: “No, James; I was not expecting to be called on now. I have been sick with the rheumatism all winter, and not able to do anything, and not looking or expecting to be called on now. I have paid the first year’s interest, and overpaid it, and there is not another year’s interest due yet, and you gave me six or seven years to pay the two hundred dollar? in, that is back, by paying you 10 per cent, interest annually, and I hope when the time comes it is due I shall be able to pay you.” John Walter testified substantially to the same thing. The defendant denied having any such conversation. If the complainant’s testimony as to the terms of sale is true, it is most unlikely that any such conversation occurred. Why should he take the pains to send for defendant to ask him to pay him any of that $200 that was back on the land, or the interest, when by his own testimony no interest was due, and the principal would not become due for nearly five years from that time? It is inconsistent with his own theory and with his testimony. The other testimony introduced by him consisted of admissions made in casual conversations by defendant or his wife, and is very unsatisfactory, not to say unreliable. Complainants were called upon to make out the contract relied upon by convincing proofs. We do not think they have-done so irrespective of the positive denial of defendant. But defendant and his wife, who is a sister of Ja'mes Waterfield, both testify that the contract of sale, as finally concluded and agreed upon in the presence of both complainants, was-a sale for cash for $400, which was all paid. This is denied by Mr. Waterfield; but Mrs. Waterfield, who defendant and his wife both testify was present at the time the contract was made, did not testify in the case. We are not satisfied that the complainants have made out the contract set forth in the bill by a fair preponderance of evidence. The bill of complaint must be dismissed, with costs of both courts. The other Justices concurred.	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Per Curiam. On June 12, 1965, plaintiff completed construction of a residential structure which he had contracted to build on defendants’ property. The contract included a clause providing for arbitration should any dispute arise between the parties. It appears from the record that a dispute over compensation for extra work did arise which prompted defendants to request an arbitration hearing in July of 1965. Plaintiff failed to attend the hearing on the appointed day and was also absent from a second scheduled hearing. Nothing further occurred until July 30, 1971 when plaintiff filed the present action seeking recovery for alleged extra work performed under the contract and appointment of an arbitrator. Defendants moved for accelerated judgment or summary judgment contending that the six-year statute of limitations period had expired on June 12, 1971 and that plaintiff’s action was thus barred. The trial judge denied the motion and further ordered that an arbitrator be appointed pursuant to MCLA 600.5015; MSA 27A.5015. Defendants appeal from the orders and findings made by the trial court. There can be no quarrel that the first count in plaintiffs action seeking contract damages was barred by the six-year statute of limitations. MCLA 600.5807; MSA 27A.5807. That cause of action accrued on the day the construction was complete which by plaintiff’s own admission was June 12, 1965. The remaining question is whether the plaintiff’s alternative equitable request for appointment of an arbitrator was barred by either the statute of limitations, waiver, or laches. MCLA 600.5815; MSA 27A.5815. There is general agreement that a demand for arbitration must be made within a reasonable time and may be denied if any equitable defense is applicable. 5 Am Jur 2d, Arbitration and Award, Cum Supp, § 21, p 42. This Court is persuaded that more than six years delay, equivalent to the statute of limitations in this case, was too long under the circumstances. Plaintiff had knowledge in 1965 of what his damages were and should have sought relief before any evidence could be lost or memories faded. The facts of the case and the actions of the plaintiff in refusing to attend two arbitration hearings also mandate a decision barring his relief based on laches, estoppel, and waiver. As stated in 25 ALR 3d 1171 § 2(a), p 1176: "It is well settled that a party’s contractual right to arbitration may be lost through his conduct, and delay in asserting a contractual right to arbitration is only one of several types of conduct which have been recognized as resulting in such loss”. (Emphasis supplied.) Plaintiff’s failure to act diligently and in good faith bars him from relief under law or equity. Reversed and remanded for judgment consistent with this opinion.	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Sherwood, J. The complainants file their bill, as assignees of Kellogg, Sawyer & Co., to set aside attachment and execution levies upon real estate described in the bill, and for an injunction preventing a sale of the property. The attachment proceedings were commenced on the sixth day of November, 1883. The suit was prosecuted to judgment, and an execution was issued and levied upon the attached property. On' the ninth day of November, 1883, Kellogg, Sawyer & Co. made a general assignment of all their property, for the benefit of their creditors, to the complainants. The lands attached were not only those included in the assignment, but also other lands which were not so assigned, but were claimed to be owned by Mrs. Sarah B. Kellogg, and occupied by her and her husband, Joseph E. Kellogg, as a homestead. In February, 1884, two petitions were filed to dissolve the attachment, — one by the assignees, to remove it from the assigned property, and the other by Joseph E. Kellogg, to have it set aside as to his residence, which belonged to his wife and was occupied by the, family. The only ground for suing out the writ of attachment, stated in the affidavit, was the belief, unsupported by any facts averred, that defendants “ are about to assign and dispose of their property with intent to defraud their creditors.” These were heard before the-circuit judge, who found as a fact that there was no showing which justified suing out the writ of attachment, and dissolved the same in both cases. Mrs. Kowe removed the cause into this Court by writ of certiorari. We then held that the learned circuit judge “was entirely correct in his inferences, and the plaintiff’s case does not appear to be meritorious,” and affirmed the decision of the circuit judge in the case of Joseph E. Kellogg; but, as regards the case of the assignees, Mr. Justice Campbell in his opinion says: , “ It is certainly desirable that those who represent creditors, as these assignees do, should have some expeditious and simple way of getting rid of unjust seizures, but we cannot see how the statutory remedy can be made to reach their equities. So far as they are concerned, we are compelled to hold that the judge had no jurisdiction, as judge out of court, to .give them relief.” The Court quashed the order in that case, but without prejudice to any other mode of redress. We further decided, ■in the case of the assignees, that the equities were clearly in their favor, and that we should have hesitated allowing the certiorari, and that we were not then prepared to sa.y the circuit court may not have some power to protect the assignees against such seizure. Rowe v. Kellogg, 54 Mich. 206. The levy under the execution was made on the twenty-•sixth day of May, 1884, and the bill in this case was filed on the fifteenth day of August following. After setting out the trust capacity in which complainants act for Kellogg, Sawyer & Co., giving a statement of the firm’s liabilities and assets, and the fact that the defendant is a creditor of the firm, and that her husband acted as her .agent in the management of her claim, the bill then states the legal proceedings taken to collect her claim, the com mencement of the suit by attachment, and the facts alleged in the affidavit made by the defendant to obtain the writ, and avers that those allegations are false, and were known to be so when the affiant made them, and that by such false statements, and procuring the attachment issued upon such false affidavit upon property not belonging to Kellogg, Sawyer & Co., but upon the property of the individual members of said firm, a fraud was committed upon the rights of complainants, and upon the court. The complainants further aver in their bill that the attachment lien in favor of the defendant upon said real estate is wholly without equity, and a fraud upon them and the other creditors whom they represent, both joint and individual; that it is the intent of the defendant to enforce said attachment lien against the property levied upon, and thereby collect her claim in full if the same can be realized from a forced sale of the property in the execution levied thereon, and which the defendant caused to be issued and procured to be levied for the purpose of continuing and. enforcing the attachment lien; that, by means of legal process, fraudulently and by imposition obtained from the court, the said defendant is about to cause the property in question to be advertised and sold upon the said execution levy, to the great injury of the complainants and all other creditors; and that the lien obtained under the levies upon the attachment and execution are void, and a cloud upon the title to the property they hold in trust, and which it is their duty as assignees to procure to be removed. The defendant in her answer admits the legal proceedings taken as charged, but denies any fraud in the institution of the suit, or any intent to defraud in the prosecution of the suit to judgment, or in her efforts to collect said judgment after it was obtained. Defendant admits making the statements contained in the affidavit as charged, and avers she had good reason for making them. She denies that her lien under the attachment is without equity, or a fraud upon complainants’ rights, or void, or a cloud upon complainants’ title. Defendant further admits that it is her intention to enforce her claim against the lands attached, under the liens she has obtained, and that the levy under the execution is only a continuance of the attachment lien. Defendant further insists in her defense that any rights which complainants have in the real estate are subsequent to those of defendant, and subject thereto, and that complainants have no right in a court of equity to litigate the matters contained in their bill, and further claims that a court of equity has no jurisdiction to dissolve an attachment levied upon real estate; that the issuing, levy, and dissolution of attachments are all matters resting upon statute, and no authority is given to a court of equity to interfere. The answer also prays the benefit of a demurrer. The proofs in the case were taken in open court before Judge Mills, who upon the hearing of the cause rendered a decree, which, after referring to the real estate to be affected thereby, and which was attached, and finding that complainants hold the legal title thereto by virtue of the assignment, proceeds as follows: “ And all of said real estate hereinbefore described having been levied upon by a writ of execution by the sheriff of the county of Kalamazoo, issued at the instance of the plaintiff in said attachment suit, the defendant herein, on the judgment rendered in the said attachment suit, and said complainants, at the time of the filing of their said bill, being in possession of said premises as assignees of said Kellogg, Sawyer & Co.; it is ordered, adjudged, and decreed that the said defendant, Florence V. Rowe, the plaintiff in said attachment suit, had no sufficient reason in law or fact to believe that Kellogg, Sawyer & Co., the defendants in said suit, were about to dispose of their property with intent to defraud their creditors, as stated by said Florence V. Rowe in her affidavit for, and as the ground for, said attachment; and in fact said Kellogg, Sawyer & Co. were not, at the time of the making of said affidavit for said attachment, about to dispose of their property with intent to cheat and defraud theiT creditors, but were about to make an assignment of all their property in trust, for the benefit of all their creditors alike, of which said plaintiff in attachment had notice from said Kellogg, Sawyer & Co. “It is further ordered, adjudged, and decreed that the levy of said attachment, and of the execution issued upon the judgment in said suit, upon said real estate above described, was without authority of law, and without right in said Florence Y. Rowe, this defendant, to proceed in such action, and the levy of said attachment and execution is fraudulent against the rights of the assignors conveying to complainants the real estate in question in trust for their creditors, and fraudulent as against the rights of the complainants as trustees, and the creditors they represent. “ And it is further ordered, adjudged, and decreed that said levy of attachment and execution upon said described lands is a cloud upon the title of the complainants thereto as ■said trustees, and said lien of attachment and execution in favor of defendant, Florence Y. Rowe, is without equity; and it is hereby decreed that said attachment and execution levy, and lien thereof, be set aside, vacated, and held for naught, and the said lands be, and the same hereby are, free and discharged from the incumbrance thereof.” Mrs. Rowe appeals from the decree, and asks a review of the case in this Court, and her counsel insist that the decree .should be reversed, and complainants’ bill dismissed, upon two grounds: “ 1. Because a court of equity has no jurisdiction. “3. Because, from the evidence in the case, if a court of equity had jurisdiction, there was sufficient reason for holding the attachment good.” Upon the last proposition the record has been carefully inspected, and I have no doubt of the correctness of the finding of the circuit judge. In a case commenced by attachment, the affidavit is necessary to confer jurisdiction; and when it is made, as in this case, upon the ground that the affiant has good reason to believe, and does believe, that the defendants are about to assign their property with intent to defraud their ■creditors, the law requires it should be made in good faith, and that the affiant should have good and substantial reasons-for the belief expressed. It is an extraordinary remedy that-is resorted to, when the creditor is allowed, through the agency of a court, to reach out and take control of the property of his debtor, and incumber it to its full value, before he has established his claim against the debtor. The court permits the use of its process for this upon the showing made in the affidavit, and upon the good faith of the affiant, and assurance that the creditor can furnish good and substantial reasons for the statements made in the affidavit. This suit is the second time the defendant has been asked to furnish the reasons for her belief stated in the affidavit, and the evidence of her good faith. In the first instance neither the circuit judge nor this-Court could find any sufficient reasons for the statements made, nor the necessary facts and circumstances to show good faith. In the present case the learned circuit judge finds that the defendant “had no sufficient reason in law or fact to believe that Kellogg, Sawyer & Co. were about to dispose of their property with intent to defraud their creditorsbut, on the contrary thereof, he found they “were about to make an assignment of all their property in trust, for the benefit of all their creditors alike, and of which said plaintiff had notice,” and that the levy of the attachment, the prosecution of the suit, and the issuing of the execution and levy thereunder, were without authority of law, and without the right of the defendant so to do, and that the levy under both writs was fraudulent against the rights of complainants, and is a cloud upon the title to the property. I think the circuit-judge, as I have said before, is fully sustained by the record, and he might with great propriety have added that the procuring of the writ of attachment, under the circumstances, was a fraud upon the court. We will now consider the first ground of objection stated'. by the learned counsel for the defendant, viz., that the court has no jurisdiction to relieve against the wrong complained of. It was expressly decided by this Court in Rowe v. Kellogg, 54 Mich. 206, that complainants had no remedy at law, and were we now to accept the legal conclusion of the counsel for defendant there would be no remedy in equity. This would be to substantially admit that our system of jurisprudence, although it embraces the common-law and the entire field of English chancery jurisdiction, has in the end proved a failure. I am not yet prepared to acquiesce in adecision fraught with such consequences. It is true, proceedings by attachment are statutory, and assignments for the benefit of creditors have been placed under the control of legislative provisions; but I have failed to find anything, in either of these statutes, depriving a court of equity of jurisdiction in cases of fraud committed upon the rights of either party, or upon the court, in taking proceedings under them. The rights of a person to his property, and to the proper remedy for its protection, are as old as the. law itself. They are secured in the organic law of our State, and I have yet seen no disposition in our legislation to depart from them, when its acts are properly construed. In this case liens to the amount of the value of the property attached were obtained upon it through the fraud of the defendant. The property, from that day forward, except the use of it, was as completely under the control of the defendant as though she were the sole owner. The complainants could not sell it, nor obtain a loan upon it, nor rent it for a term of years, with any degree of safety. The lien was properly entered of record, and prima facie, after the judgment was obtained, was for that amount. True, the lien was void in fact, but it is prima facie a damaging cloud upon the complainants’ title until removed by the action of the court. Why should not equity take jurisdiction of the case, and declare the lien obtained upon the complainants’ property void by reason of the fraud perpetrated in obtaining it, and remove the cloud from the title of complainants’ property, which so seriously injures its sale? Fraud is certainly one of the grounds of original equity jurisdiction, and it makes no difference whether it arises under statute or common law; and equity, when properly administered, never fails to relieve a person’s land from unjust claims and clouds in disparagement of his title created through fraud. Nowhere in the attachment law, or under the legislation relating to assignments by insolvent debtors, or in any other statute, have I been able to find any provision depriving a court of chancery of its jurisdiction in cases like the present; and in no case where a remedy is of so long standing, and absolutely necessary to furnish the proper redress, will such a change be presumed. It is claimed by the defendant that the bill is filed merely to obtain the dissolution of an attachment. I do not think this view'takes in the proper scope of the bill; but if this were true, and the attachment levy was obtained by false affidavit, and fraud practiced upon the opposite parties and the court, can there be any doubt that the fraudulent and illegal proceeding would be a proper subject for the consideration of a court of equity, and fall within its jurisdiction? I think it clearly would, and that there is nothing contained in our statutes depriving it of jurisdiction in such a case. In this case, however, the dissolution of the attachment is only one of the consequences which necessarily follow the discovery of the fraud. It was not only the duty of the court in this case to dissolve the attachment on discovering the fraud and imposition practiced upon the parties and court, but also to remove from the records all evidence of any lien created thereby, and to restore to complainants all rights of which they had been deprived by the illegal proceeding. The fraud practiced upon the complainants and their assignors required this; but a fraud upon the court has always been regarded as the most odious of all frauds under forms of law, and should always receive the just condemnation of all legal tribunals wherein it is attempted. Galatian v. Erwin, Hopk. Ch. 54; Mitf. Eq. Pl. 131; Wright v. Hake, 38 Mich. 525; Adair v. Cummin, 48 Id. 375; Edson v. Cumings, 52 Id. 52; 1 Story, Eq. Jur. § 438; State v. Phœnix Bank, 33 N. Y. 26; Loyd v. Mansell, 2 P. Wms. 74. There is no proceeding in any court procured by fraud and imposition which, as between the parties, will not be set aside upon a sufficient disclosure of the fraud, if injury has been sustained by the party imposed upon thereby. 1 Story, Eq. Jur. §§ 189-190a, 439; Madd. Ch. Pr. 204; Will. Eq. Jur. 147; Huguenin v. Baseley, 14 Ves. 273; Mortlock v. Buller, 10 Id. 306; Lawley v. Hooper, 3 Atk. 279; Belcher v. Belcher, 10 Verg. 121. See, also, New York Exchange Co. v. De Wolf, 31 N. Y. 273; Kennedy v. Daly, 1 Schoales & L. 355; Dobson v. Pearce, 12 N. Y. 156; Davis v. Tilesion, 6 How. 114; Fenemore v. U. S., 3 Dall. 357. I have no doubt of the right of the complainants to the relief prayed, and, in my judgment, the decree rendered by the circuit judge should in all things be affirmed, with costs.	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Morse, J. Just, on the twelfth day of November, 1883, sold to Porter a team of .horses, a wagon, and harness for $415, and received in payment therefor three promissory notes, secured by a chattel mortgage upon the property. The parties on the same day entered into the following written contract: “Greenville, Mich., November 12, 1883. “ I agree to take of Frank Porter cull shingles for one note of $50, due December 2, 1883, and one note of $250, due June 1, 1884, at any time he may deliver them, at Lakeview, in car-load lots, to be indorsed on said paper at 50c per thousand. And the note of $ 115 to be paid in second shingles at $1.50 per thousand. Those prices to be considered payment if the shingles are delivered by the time the notes mature. If said .Porter fails to deliver shingles as agreed, upon maturity of the paper, he is expected to pay money, or stipulate as to price of shingles. “W. J. Just. “Frank Porter.” July 27, 1885, Just brought replevin for the property, claiming under his chattel mortgage, and that the same was in default for non-payment. He obtained the property under his writ. The defendant claimed that, under the contract, he had delivered at Lakeview, previous to the first day of June, 1884, 300,000 cull shingles, which, with a tender of .$32.75,. made before suit to the plaintiff, paid the notes, in full, and released the property in question from the mortgage. Defendant had judgment in the circuit for $374.12, having-elected upon the trial to waive a return of the property, and take judgment for its value. Only two errors are insisted upon in the argument here. First, that the court erred in leaving the meaning and intent of the parties in making this contract to be determined by the jury. We find no error in this respect. The court instructed the jury that, under the contract, it was no part of the defendant’s duty to load the shingles upon the cars. This was undoubtedly correct. The defendant claimed that he notified the plaintiff that the shingles were delivered and piled up at Lakeview, and that the plaintiff accepted them upon the-contract. Plaintiff denied that he accepted them. The shingles in dispute were burned at Lakeview in August, 1884.. The court, upon this branch of the case, said: “Now, then, gentlemen, how is it as to the 800,000 cull shingles? You have the contract that has been read in evidence to you about those shingles being delivered. What was the intention of the parties? Was it their intent that the shingles should belong to Mr. Just? Was it understood by both parties that Just had accepted them as his property?' Now, the evidence shows that this contract in writing was made between them that they were to be delivered at Lake-view in car-load lots. You have heard where the shingles were, the condition they were in, and all there is about that-matter. Now, what was the intent of the parties? Was it their intent, under all the evidence in the case, that these shingles operate as payment upon that mortgage, and be applied upon it? If that was their intent, if that was their understanding, if their minds met upon that proposition, then those shingles should be so applied upon that mortgage they should be credited thereon as payment; but, if it was not, then they ought not to be. Now, if you do not apply the shingles, then the plaintiff must recover; if you do, they would not pay the amount due, but it is claimed more than the amount due was tendered before suit was brought, Julv 21, 1885.” - . The meaning and intent of the contract was not submitted’ to the jury, but the intent of the parties as to the acceptance-of these shingles upon the contract was very properly left to them. It was for them to determine, as a question of fact, whether these shingles were, by agreement of the parties,, applied or to be applied in payment of- the notes and mortgage. The second objection to the judgment is that, under the- charge of the court, the defendant recovered, not only the value of the property, but the use of it from the date of its seizure upon, the replevin writ to the date of the verdict. The trial proceeded, without objection, upon the theory apparently that this was the true rule of damages, and no exception was taken to the charge of the court in this regard. The error is assigned under Act. No. 101 of the Session Laws of 1885, which authorizes assignment of errors upon the charge of the court without any exception being taken thereto upon the trial. We have always doubted the propriety of this statute. It was enacted, without doubt, in the belief that it would in some way subserve the ends of justice, and be of benefit to litigants. Its effect has been, not only to increase litigation, but to unfairly and unjustly deprive parties of their rights. It can readily be made an aid to practices unfair to the trial courts, and not desired in the administration of justice. An attorney may purposely refrain from bringing some defense in law to the notice of the trial court, in a case where the facts seem against him, in order to gain a new trial if the jury decide the merits adversely to his client. There was, it can be said, no purpose of this kind in this suit, and the action of the attorney for the appellant lacks nothing in fairness or honorable action in the trial of the same; but the working of this statute to ill results is shown in another way. After the trial of this suit, we held, in the case of Hanselman v. Kegel, 60 Mich. 550, that in a replevin suit under our statutes, where the property was not found or taken upon the writ, and the plaintiff proceeded in the action for the value of the chattels, the measure of damages was the value of the same at the date of the unlawful taking, with the interest upon such value. This decision was filed April 15, 1886. The bill of exceptions in this case was settled June 17, 1886. The judgment was rendered December 17, 1885. The counsel for the appellant cannot be criticised for taking advantage of this decision under this statute. But, as the case was made in the court below, the defendant was entitled to a judgment, and, if the matter of damages had been contested and brought to the notice of the trial judge, it is to be presumed that he would have laid down the rule in accordance with the holding of this Court. In such case there would have been no error in the proceedings, and therefore an affirmance here of the judgment below, and an end put to the controversy. If we could distinguish the amount allowed by the jury for the use of the property from the value of the same, as found by the jury, we should feel disposed, as in the Hanselman Case, to enter a judgment here for the value simply; but we cannot separate the items, and must grant a new trial if the doctrine of the Hanselman Case be sound, and applicable to the case at bar. The counsel for the defendant seems to doubt the correctness of our ruling in that case, and insists, further, that it is not applicable to the case now before us. A re-examination of the authorities and our statutes convinces me that the rule of damages laid down in the Hanselman Case is the just and proper one. Under section 8347 of Howell’s Statutes, the defendant, if he waive a return of the property, may take judgment for its value. There is no provision made for the recovery also of damages for the detention of the property. In Halselman v. Kegel the case differed from the one at bar in the fact that the plaintiff did not recover her property under the writ, and therefore pursued her action under the statute for the value thereof. In such a case there seems to be no question but the rule of damages is the same as in trover. In this case the property was taken on the writ by the plaintiff, but on the trial defendant elected to take judgment for the value of the property. The property was such that it was the subject of valuable use. There are authorities holding, in such a case, that the value to -be assessed is the value at the time of trial; and the damages for the detention, being the use, can also be added thereto in the verdict. Cook v. Hamilton, 67 Iowa, 394 (25 N. W. Rep. 676). The reasoning of the Iowa case is not satisfactory to me. When the defendant has his option, upon the trial, to take the property or its value, the correct rule,, in my opinion, is the one adopted in the Hanselman Case. The suit in replevin proceeds upon the theory of adjudicating the rights of the parties as they were at the date of the issue of the writ. In the present case the value of the property was proven of that date. If the defendant elects to take the value of the property, he, in effect, thereby makes a sale of it to the plaintiff at the date of its taking, and its value at that time, with interest up to the date of the verdict, is certainly a fair compensation. If he prefers to take the property, and the value of its use while detained, he can do so. The option is his, and not the plaintiff’s. There is no justice in his taking the value of the property, selling it to the plaintiff against his will, and also charging him with the use of it in addition. Bigelow v. Doolittle, 36 Wis. 115, 120; 3 Suth. Dam. 560, and cases cited in note 4; Hanselman v. Kegel, 60 Mich. 540, 550, and cases cited. It is argued that the counsel for the plaintiff waived this error of the trial judge by not interposing any objection to the introduction of the evidence of the value of the use of the property upon .the trial. But if, at the close of the trial, the counsel for defendant had not waived a return of the property, such evidence would have been competent, and the value of the use could have been recovered. Plaintiff’s counsel could not, at the time the evidence was offered, have made any valid objection to its reception, and the statute unfortunately expressly provides that he need not except to the charge of the court. It follows, for this error as to the rule of damages, that the judgment must be reversed, and a new trial granted. Campbell, C. J., and Chahplin, J., concurred. Sherwood, J. I do not hold the same opinion as do my brethren in regard to the statute allowing exception to betaken to the charge after verdict. I think it tends to secure rights of parties which might, through neglect or inadvertence, be otherwise lost, and regard the statute with favor. I concur, however, in the result.	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Campbell, C. J. This is the same controversy, in a different form, which is reported in Farwell v. Myers, 59 Mich. 179. In that case a claim was prosecuted under a general assignment for a balance insisted on as remaining due under a contract which was made by a purchaser with intent to defraud vendors, and to get goods without paying for them- The debtor made a general assignment, and the creditors replevied so much of ■ the goods as they could trace to the hands of the assignee. They then filed their claim as vendors for the price of so much of the property as they had not replevied. The circuit court held that the claim could not be based on the contract, which had been rescinded for the fraud, and this Court divided equally upon that question, thus affirming the judgment. But all the members of this Court agreed that the fraudulent purchaser was responsible for the conversion of the goods if he had converted them, and. that a claim might lie on that basis. Thereupon a new claim was filed, and the parties by counsel agreed upon the facts, from which it appeared that Myers had, before the assignment, sold the property beyond what was assigned, and the amount of the sales was agreed upon. Upon this claim and the stipulated facts, the circuit court gave judgment for the proceeds of the conversion. Error is brought, and the errors assigned all go to the correctness of the judgment upon the agreed facts. The amount is not disputed, but it is insisted the claim was cut off by delay, and barred also by the former adjudication. So far as delay is concerned, it is due entirely to a matter of legal form in describing the nature of the debt, and to the disallowance in the shape first presented. We think there is nothing in the statute to prevent its allowance, although the delay may have left less money in the assignee’s hands than will place the claimants on as good a footing as those who have already received dividends. Upon this we are not fully informed. But it is impossible to hold the claim barred by the former adjudication. That simply held that no suit would lie on the contract as an original contract after it was rescinded for fraud. The present claim is not based on the contract, but on the conversion of the property of the claimants, whereby they are entitled to require the payment of the value or proceeds, and they have now elected to proceed for the conversion of the goods for their money, which could be demanded either in trover or assumpsit. The claim was recognized in our former decision as a proper one, and we have no doubt it was properly allowed below. There is some doubt whether the record is in such a shape as to leave all the questions open which were argued. But,as the objections do not appeal to any sound rule of law, we have not thought it worth while to dwell on their formality. The judgment must be affirmed. The other Justices concurred.	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Campbell, O. J. Plaintiff brings certiorari to review the proceedings laying out a road on the town line between Eaton and Ingham counties. Several irregularities are set up, and it is admitted the records are not perfect. But it is claimed the plaintiff shows no such equities as require this Court to intervene for his protection. It appears that the application to the highway commissioners to lay out this road so as to connect with roads north and south was made in 1885, and notice given for the meeting, to be held November 10,1885. On that day they met and established the road, giving damages to various persons, including plaintiff, who was awarded $40. On the 19th of November, 1885, B. H. Skinner appealed to the town boards, who, on December 3, 1885, affirmed the action of the commissioners. Plaintiff shows by his petition for certiorari that he was personally served with a notice which informed him seasonably of the meeting of November, 1885, being only defective in not describing it as a joint meeting. In December, 1885, he was also tendered an order payable in February, 1887, for $40 damages, which he refused. On December 22, 1885, he was notified to remove his fences. He applied for the certiorari, April 29, 1886. The petition does not show that plaintiff is at all damnified by the proceedings, or that the estimate of damages was too low, and it shows affirmatively that he had personal notice of the meeting. He relies entirely on technical objections. While the law requires correctness in these proceedings, yet the action of the local authorities is very apt to be a little careless, and, unless complaints are promptly made, expenses are incurred and steps taken to lay out and complete the highways for travel, whereby the whole neighborhood may become incommoded by subsequent interruption. Where there is no reason to suppose any wrong has been done by laying out a town-line road, which it is contemplated by law will usually be done when settlements warrant it, we do not think it desirable to interfere, by certiorari, if at all, after any needless delay, and after general action is likely to have been had in reliance on the legality of the road. We do not usually meddle with local administration for trifling reasons. In the present case we think that no damage appears to have been done to plaintiff, and he has failed to act with any degree of diligence. There is no reason to doubt the fairness of the action complained of. We shall therefore dismiss the writ as improvidently granted. 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Campbell, O. J Tne plaintiff in certiorari having sued out and levied an attachment against the property of defendant, the latter procured a dissolution of the attachment by a circuit court commissioner, from which plaintiff appealed. The hearing of this appeal appears to have been delayed by a series of dilatory proceedings from December, 1884, until January, 1886, when the appeal came on for trial before a jury. Instead of proceeding with the trial, the circuit court undertook to decide that the plaintiff had waived and abandoned its attachment, and, without allowing any testimony to go to the jury, affirmed the dissolution, and ordered the property to be restored to defendant. The return to the certiorari recites a long series of transactions in the attachment suit and in other proceedings, which, if admissible at all, could only be properly introduced before the j ury on the trial of the appeal. The case comes in all respects within the •decision in Calvert Lithographing Co. v. Drs. K. & K. Medical Ass'n, 61 Mich. 336. We deem it proper to say, however, that, even if the circuit judge could have decided the questions before him on the facts which he certifies, we do not think they showed any •abandonment. The dissolution of the attachment rendered it impossible to deal effectually with the attached property, which appears to have been taken off by other parties, and, ■so long as these appeal proceedings were pending, plaintiff was helpless. Its resort to other means of collection, which proved ineffectual, could not be treated as an abandonment •or waiver of the appeal under such circumstances, and the •causes which it offered to show were sufficient to sustain its .attachment. Without considering whether the sufficiency of the affidavit «itself could be looked into on this appellate proceeding, we have no doubt it was sufficient. It is quite possible for •several good reasons to co-exist for suing out an attachment, •and we know of no reason why one should destroy the other when all are consistent. The order dissolving the attachment, and affi ming the •commissioner’s order, must be quashed, with costs of both •courts. The other Justices concurred.	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Morse, J. No question is made in this case as to the sufficiency of the petition, notice, etc.; but it is claimed that the commissioner, in proceedings to establish and lay out a highway over the right of way and track of the plaintiff in error, arbitrarily disregarded the rights of the railroad company in his assessment of damages, and failed and neglected to award it just compensation for its damages by rea- . son of the laying out of the proposed highway. The writ of certiorari was improvidently granted, and ■must be dismissed, with costs. The statute has provided for an appeal from the commissioner to the township board. When the only grievance lies in the • award of damage, the proper remedy is by such appeal. “It must be presumed that, if the commissioner refused to consider the proper ^elements of damage, the board would have done justice on the appeal.” Detroit & B. C. R. R. Co. v. Graham, 46 Mich. 642. The other Justices concurred. How Stat. § 1303. See Chicago & Grand Trunk Ry. Co. v. Hough, 61 Mich. 507.	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Morse, J. The plaintiff brought suit for damages for the negligent killing of her son, a boy 12 years of age. The jury were directed by the court below to find a verdict for the defendant. The plaintiff’s intestate, and another boy, Edward Deidrich, rode on a freight train of defendant to Delray, waited around there until the train was ready to return to Detroit, and then they climbed upon the freight car next to the engine, with the intention of riding back to the city. They remained on the top of this car some time; but, on account of the sparks flying back upon them from the smoke-stack of the engine, they left the car, and got upon the front of the engine, which was pulling the train, tender foremost. They were ridipg on the front part of the engine when it collided, at the foot of Twenty-first street, in the city of Detroit, with another of defendant’s engines, by which collision the plaintiff’s intestate was killed, and Deidrich lost a leg. The boys rode out to Delray in the afternoon, and started on their ride back about 6 p. m. Delray is about three miles outside of the city limits. The collision occurred October 15, 1883. It was shown upon the trial that plaintiff’s intestate, and other boys of like age, and older, frequently rode on these trains to Delray, and back again to the city, and that at least one conductor allowed them to do so. Deidrich was a witness, and testified that Bailey, the one that had permitted the boys to ride on the train, was the conductor, but thinks the brakeman on the last car had charge of the train coming into Detroit that night. “ The brakeman who brought the train in that night saw me on the train. He was nearly on the last car. He saw me get on, I know, because he was looking right at us. I did not see any other brakeman there. * * * I saw the engineer. Well, he was looking. I don’t know if he was looking at us. We were on the first car next to the engine. I was on top of the car, and Eclifii was with me. The engine was right in front of it. * * I think the smoke-stack would have been in the way to prevent the engineer from seeing us on this car. There was a window that they looked out of in front. There was nothing to j>revent his looking out of that window, and seeing us on the car. If he had looked back he would have seen us. From where he stood to about where we sat was about fifteen feet. I saw the fireman.” At the time of the collision the boys were sitting right in front of the boiler on the engine. From there- they could not see the engineer, or he them. When the boys rode out to Delray, the train was in charge of Bailey. They rode on top of a car, some half dozen or more cars from the engine. Deidrich swears Bailey saw them at this time, and that he was also on top of the cars, between the boys and the engine, and standing up. “ We had ridden on the train before this time often. I could not tell you how many times. We usually rode on top of the freight cars, and sometimes got on the front part of the engine. * * * When we got on the cars from time to time, we were where the conductor could see us getting on. When we got on the car.--, he would be on top of the train. He could see us get on the cars. * * * Generally there would be a brakeman and one conductor, — a brakeman on the back end.” The same conductor and train' hands who ran the freight train out to Delray in the afternoon ran the 6 o’clock p. m. train into the city. The rules of the defendant company forbid conductors, brakemen, engineers, and all others connected with the running of trains, to permit or allow any person or persons to ride upon the engine or tender, except certain officers and employés of the road, without permission from the general or division superintendent, or in ease of storms or accident. Freight trains were only allowed to carry passengers when specified in the time-tables. This train was not so specified. These boys were not passengers in the strict sense, however, as they paid no fare, and, if not stealing rides, were taking free passage for their own sport, under license from the conductor or other train hands. Mr. Dewey, who at the time was night yard-master, testifies that he acted as conductor from Delray into Detroit, the night of the accident, of this train upon which plaintiff’s-intestate was riding. He swears that there were 15 cars in the train. The switch-engine was pulling the cars down, moving backwards, tender foremost. A part of the cowcatcher was taken off, and a step put on for the accommodation of the switchman. A boy or man could sit there. Dewey says he was on top of the cars, about the middle of the train, coming into the city. He claims he did not see the-boys until after the accident, and that it was dark when the-train left Delray. “We lit the head-light.” Thinks “it. was sufficiently dark to interfere with seeing persons the-length of seven cars with distinctness.” During the trip. Dewey remained on top of the cars. He moved both ways-on the cars, probably three or four car-lengths, and up to the third car of the engine. “ I might have been on the first car during the trip. Would not say positively. ” The conductor Bailey was not sworn, but there was evidence tending to show that he and his brakemen were cog nizant of boys frequently riding on the trains, and permitted them to do so. Deidrich was recalled after the testimony of Dewey, and recognized him as the man he saw on the top of the train, whom he thought was a brakeman in charge of it. H. H. Jeanette, the engineer on the train, testified that he did not see either of the boys upon the train until after the collision. He then saw Deidrich getting off. He had a copy of the rules, and never knowingly permitted any boys to ride upon the train. He admitted that he had seen boys riding upon the top of the cars, and in such cases he did not stop unless he received a signal from the conductor. “ I saw two boys at Delray when we arrived there. Part of the time they were on top of the cars, part of the time on the ground. * * * I supposed afterwards these boys hurt and killed were the two boys; I don’t know that they were.” He further testified that he had seen boys riding on top of the cars both ways, and he did not stop to 'put them off. He never stopped to remove boys between Detroit and Del-ray, or coming back into the city, until he got into the yard. Frank Weissel, the brakeman, testifies that he knew the two boys, and saw them playing that evening at Delray just before the train started. “ I told them if I seen them on the train I should either put them off or kick them off.” Did not see them upon the train until after the collision. He did not pass up and down, but was stationed upon the rear end of the train. He did not know that the boys came out with their train, but knew they got out there some way, and felt satisfied that they were waiting to ride back into the city on the train. f‘I made no effort to see whether they attempted to get on board of our train. I had no time. They were not the first boys 1 had ever told to keep off the trains. * * * I saw them waiting for the train to start'to the city after I had told them not to get on the train, and I said nothing to them.” He is not certain, on cross-examination, whether he told both of the boys not to get on the train, but is positive that he told one of them so. On being asked if, as a matter of fact, he did not know these boys were on the train, he said : “ Morally, I knew that they were there, but I did not see them there.” The circuit judge thought that the plaintiff’s intestate was a trespasser, and that the defendant did not know he was on the train, and ruled that, under the pleadings and the evidence, the plaintiff could not recover. He also intimated that, if the brakeman and engineer knew he was there, it would make no difference. There is no doubt but the collision was the proximate cause of the death of the boy, and that such collision was caused by the negligence of the employés of the company. The counsel for defendant claims that the boy was a trespasser, and the defendant owed him no duty except not to wantonly injure him, and that a boy of 12 knows as well as an adult that the position occupied by decedent upon the train that night was a dangerous one, and he was therefore guilty of contributory negligence. There was evidence, as before shown, to the effect that this boy and others had been permitted to ride upon this train before, and were in the habit of so doing frequently. They rode out to Delray upon this train in the afternoon, and were seen, and known to be waiting to ride back to Detroit upon it. Deidrich testified that he was not forbidden to get on the cars that nigjit. I think there was evidence tending to show that these boys were riding by implied permission of the parties in charge of the train, and the brakeman admits that “morally” he knew the boys were there, but claims he did not see them. If permission was granted or implied by the action of the defendant’s employés, the boy could not, in my opinion, be a trespasser. But, in the view I take of another branch of the case, it is not necessary to ■ discuss this question further. If the plaintiff’s intestate was guilty of contributory negligence, there can be no recovery. He was riding in an extremely unsafe and dangerous place in the first instance; and, when he changed his position to the front of the engine, he occupied a still more dangerous seat. An adult person could not recover, under such circumstances, for the negligence of the defendant and its employés, unless such negligence was gross or wanton. There can be no claim of such negligence in this ease. But it is claimed by plaintiff’s counsel that a child of 12‘ years cannot be charged with the same discretion and judgment as an adult, and that it is sufficient if the boy in this case exercised reasonable care according to his age and capacity. And it is further contended that this reasonable care, to be so exercised, is ,a question in all cases to be determined by a jury under the particular circumstances in each case. It is true that the caution required is according to the maturity and capacity of the child, to be determined in each case by the facts in such case; and the degree of discretion-in avoiding danger depends upon the age and knowledge of the child. And when there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in getting in the way or reach of such danger, or as to the age or capability of the child, the question of the contributory negligence of the person injured or killed should be submitted to the jury; or if all the circumstances of the case, when the facts are undisputed, are such that ordinarily prudent men would be liable to differ in their views as to the negligence imputed, then such negligence should not be determined by the court,, but the question left to the jury under proper instructions. In this case there is no conflict of evidence upon these points to be considered in determining whether or not the boy was negligent. The plaintiff’s intestate was of ordinary intelligence, and usually bright for his age, as his mother testifies. Although delicate in health, he was “ full of animal spirits,” and out of doors a great deal. He was, of course, more heedless and thoughtless of danger than a man; but he was living in the immediate vicinity of railroad trains, and accustomed to them. He must be presumed to have known of the great peril and danger of riding where he did. The fact that it was a place of great danger js a matter of common knowledge, and is intensified by the fact that no one upon this train .was injured but these two boys, who, in the position they were, could not well escape hurt by such an accident. A boy of 12 years knows as well as an adult that upon the top of freight cars, or in front of the engine, when reversed* between that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless, and not as cautious as a man, in the face of such danger, is not of itself enough to excuse him. I can see no reason for-submitting a question as plain and clear as this one to a jury. There could be but one result if the judgment and oaths of the jurors were not warped and disregarded because of the natural sympathy that goes out instinctively towards the sufferer in such a case as this. The plaintiff’s intestate was guilty of contributory negligence in riding as he did upon the train, and no fault of the company or its employés, short of gross or wanton carelessness, can excuse him from the results of such negligence. Messenger v. Dennie, 137 Mass. 197; Masser v. Chicago, R. I. & P. Ry. Co., 68 Iowa, 602 (S. C. 27 N. W. Rep. 778); Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504. The circuit judge was therefore correct in directing a verdict for the defendant, because the negligence of plaintiff’s intestate must be considered as contributing to his death. The judgment is affirmed, with costs. The other Justices concurred.	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Champlin, J. This case was submitted upon briefs, and we shall therefore notice only those assignments of error which are relied upon in the brief of defendant’s counsel. The action was brought to recover damages for a malicious-prosecution. Section 9173 of Howell’s Statutes enacts that every person who shall willfully commit any trespass on the land of another by carrying away any roots, fruit, or plant there being, in which he has no interest or property, without the license' of the owner, of the value of five dollars or more, shall be' punished by imprisonment in the county jail not more than 60 days, or by fine not exceeding 8100. On the twenty-fourth of July, 1885, the defendant made" complaint on oath, before a justice of the peace of the city of Adrian, that Eliza Wilson, on the twenty-fourth of July, 1885, with force and arms, unlawfully did enter upon the land of the said Levi L. Bowen, situated in the township of Franklin, in Lenawee county, and did then and there carry away 50 quarts of whortleberries (sometimes called huckle-' berries), then and there growing on said land, of the value of five dollars, without the license of him, the said Levi L. Bowen, — she, said Eliza Wilson, then and there not having any interest or property in said whortleberries, — contrary to the form of the statute, etc. TJpon this complaint a warrant was issued by the justice, and Mrs. Wilson was apprehended and brought before the magistrate, when an adjournment was had, and she was released from custody upon her own recognizance to appear. Another adjournment was had, and on the adjourned day the prosecuting attorney requested a dismissal of the case, which was done by the justice, and the prisoner discharged. Thereupon she brought this action. The defendant, when on the stand as a witness in his own behalf, was proceeding to testify to the conversation which he had with the prosecuting attorney previous to entering the complaint against Mrs. Wilson, and he had narrated that he said to the prosecuting attorney that he— “ Had had to have her arrested three years ago for the same thing, and he wanted to know what was done with her at that time, and I told him she was let off by paying the ’ costs and promising to keep away.” The witness then testified that he and the prosecuting at-' torney went to the magistrate’s office, and witness asked the justice if he remembered that case, and he said he did. Counsel for defendant then asked this question: “You may tell what other conversation there was between you and the prosecuting attorney, or between you and the justice.” This question was objected to, and a motion was made to strike out what the witness said he told the prosecuting attorney in regard to Mrs. Wilson’s having been arrested, and what she did, as incompetent. The motion was granted, and the testimony stricken out. It is urged by counsel for defendant that the testimony was proper, as bearing upon the question of malice. We cannot see as it has the remotest bearing upon the question of malice. The fact itself, or the conversation in reference to it, certainly had no tendency to disprove malice. The two transactions had no relation to each other, and the testimony was rightly excluded. The testimony of Helen Mattis, as to her seeing Mrs. Wilson upon the defendant’s premises picking huckleberries any other season than the one complained of, was properly excluded, as also were the records before the magistrate of the proceedings had before him three years previously against Mrs. Wilson for a like offense. This testimony, it is claimed, was relevant upon the questions of probable cause and malice. The testimony had no legitimate bearing upon these questions, and was wholly irrelevant upon any point involved in the issues being tried. Patterson v. Garlock, 39 Mich. 449; 1 Whart. Ev. §§ 54, 56, and cases cited. Eliza Lanning, a witness on the part of plaintiff, was asked, on cross-examination by defendant’s counsel: “Did you tell Mrs. Mattis, at that time, that Augusta Bowen was in the swamp, driving the plaintiff and others out ?” To which she answered: “ I told her Augusta told me they were not going to allow any one to pick. I didn’t tell her that she was there driving them out. I said they did not allow any one to pick berries on Mr. Bowen’s side.” Helen Mattis was then placed upon the stand, and asked: “"What did she [Eliza Lan.ning] tell you, if anything, about Augusta Bowen being up there, and driving out the plaintiff and others ?” This question was offered for the purpose of discrediting the witness Eliza Lanning in a material matter. It was objected to as incompetent, and ruled out. The conversation between Eliza Lanning and Helen Mattis about what Augusta Bowen did was wholly immaterial to the issue, and the testimony was not admissible for the purpose stated. 1 Greenl. Ev. § 455; Best, Ev. § 644. Counsel for defendant requested the court to charge the jury that— “If the defendant acted in good faith, and from honest motives, that would be a defense, and entitle him to your verdict, even if the plaintiff was in fact innocent, and there was not even probable cause for making the complaint.” This was refused, and rightly so. Good faith and honest motives, where there is not even probable cause for making a complaint of a criminal character against a person, is not a defense to an action for malicious prosecution. The fallacy of the proposition is so plain that no argument is required to refute it. The eighth request to charge was properly refused, for the reason, among others, that it was based upon evidence not in the case. The eleventh request is as follows : “If the defendant had information, from persons whom he deemed truthful and worthy of credit, that the plaint-, iff had, during the summer of 1885, been repeatedly, and two or more times when she was positively identified by his informants, seen in his whortleberry swamp picking and carrying away berries, and two or more other times when, though his informant was not able to identify her positively by having seen her face, yet, from, dress and size, his informant believed it to be she, and the defendant was satisfied from such information that it' was the plaintiff, and such acts of the plaintiff were without his permission and against his will, and such different occasions were in the same season, and within a few days of each other; and that on several of these occasions, when so found picking berries, she had her daughter with her, a girl aged fourteen years, who was also picking berries, and that, when seen and fully identified by the informants of the plaintiff, she and her daughter had each several quarts of berries picked, and remained in the swamp picking berries for a considerable time after the berries were so seen and the amount noticed by his informants, .and the berries picked were carried away by the plaintiff and her daughter, and the defendant had no means of knowing what quantity of berries had thus been taken by the plaintiff other than the information so received, and an estimate therefrom, and he actually believed, from such information and estimate, that the quantity so taken by her during the season was over fifty quarts, — this would be probable cause for making such complaint.” The court charged that, — “ To constitute probable cause in a criminal prosecution, there must be such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged. “A person may have probable cause for making a criminal complaint from information received from others merely; but in such case he must honestly believe the information thus obtained to be true, and the information must be of that character, and obtained from such sources, that business men generally, of ordinary care, prudence, and discretion, would act upon it under such circumstances, believing it to be reliable. But a man’s mere belief that another is guilty is not probable cause, unless that belief is founded upon reasonable grounds of suspicion, or upon information of such a reliable kind, and from such reliable sources, as I have mentioned above; and a mere conjecture or suspicion is not probable cause, but the facts must be such as would induce an impartial and reasonable mind to believe in the guilt of the accused. A man has no right to start a criminal prosecution against another upon a mere conjecture that he has committed crime, when neither the conduct of the accused apparent to the accuser, nor the information he has received,, is sufficient to warrant and justify the suspicion before pointed out. There can be no justification in such case, and no. probable cause.” It was said in Hamilton v. Smith, 39 Mich. 227, that— “ It is the province of the jury to ascertain what state of' facts exists, and it is the province of the judge to decide whether that state of facts constitutes probable cause, and the law intends that these functions shall be kept distinct. But as the law appropriate to the. facts cannot be laid down unequivocally until it is ascertained what the facts are, it is found necessary, where they are in dispute, to submit the whole subject to the jury under proper instructions as to the rule of law to be applied, according as they find one state of facts or another. The law belonging to any state of facts subject to be found being given to them in advance, they are enabled, on coming to an agreement as to what is the true state of facts, to apply the law delivered to them as belonging thereto, and formulate the result.” The court, in the charge above quoted, properly defined probable, cause, and when it would be a defense to an action for malicious prosecution. But something more than this was required of the court. It was the duty of the court to apply the law to the facts, and to instruct the jury whether, if they found certain facts claimed by the testimony introduced by the plaintiff to be established, they, taken as a whole, and all legitimate inferences to be drawn therefrom, constituted a want of probable cause; and if they found, from plaintiff’s, testimony, a want of probable cause, then whether, from the testimony of defendant, the want of probable cause was rebutted by showing that defendant had probable cause to believe that the charge made in the complaint was true. "We do not find in the charge that the judge instructed the jury as to the rule Of law to be applied as they should find one state of facts to exist or another. The jury were left to find the fact, and apply the definitions of probable cause and. want of probable cause without any aid from the court, and.. without being told what facts in the case, if found from the testimony, would constitute probable cause, or show a want of probable cause. The eleventh request was in the main correct, and should have been given substantially as requested. The fact that the daughter was also picking berries might and ought to have been omitted, but the balance of the request was proper, and ought to have been given, or substantially covered by the charge. It contained information concerning facts derived from his family and neighbors, which, if actually believed, would have justified a man of rectitude, possessing and acting with ordinary care, prudence, and discretion, in making the complaint. It is claimed that the charge of the court relative to that branch of the defense which was based upon the advice of the prosecuting attorney is erroneous, because there was no such testimony in the case as the charge supposes and assumes. As the bill of exceptions does not profess to contain all the testimony given upon the trial, we cannot determine whether the error is well assigned or not. The presumption in such case is that there was testimony given in the case which justified the court in charging as he did, and that no error in that respect was committed. Upon the question of damages, in case the jury found the plaintiff was entitled to recover, the judge instructed the jury as follows: “ If you find the defendant guilty in this case, the jury have the right to give the plaintiff such an amount of damages as will compensate her for all her expenses and trouble she was put to in defending herself from the charge and examination before the justice, and also for the pain, anguish, and suffering she has endured in consequence of the charge and arrest, and in consequence of a wrongful charge being brought against her, and the public scandal occasioned thereby, and also such sum as will punish the defendant for the wrong he has willfully and maliciously done to the plaintiff.” The subject of damages in cases of this sort was discussed in Hamilton v. Smith, 39 Mich. 230, and the authorities cited showing the principles upon which the Court proceeded in applying the rule of damages in cases of tort. It was observed in that case that, in actions for malicious prosecution,— “The elements of damage were the expense of the plaintiff, if any, in and about the prosecution complained of, to protect himself; his loss of time; his deprivation of liberty, and the loss of the society of his family; the injury to his fame; personal mortification; and the smart and injury of the malicious arts and acts and oppression of the parties.” The subject was again discussed in Stilson v. Gibbs, 53 Mich. 283. In that case the circuit judge instructed the jury that if certain acts were done willfully, maliciously, and wantonly, the jury might find a verdict for exemplary or punitive damages, and, in estimating the amount of their verdict, they would add to the exemplary damages, if they found any, the plaintiff’s actual damages, with interest, concerning which this Court in disposing of the case, said: “The principal fault in the instructions is to be found in the distinct presentation of the idea that the jury, after estimating the actual damages of the defendant, might go further, and give a further sum, limited only by their discretion, by way of punishment and example.” It is not necessary to repeat the discussion. It is summed up by saying that the purpose of an action of tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant; that compensation to the plaintiff is the purpose in view; and, when that is accorded, anything beyond, by whatever name called, is unauthorized. It is not the province of the jury, after full damages have been found for the plaintiff, so that he is fully compensated for the wrong committed by the defendant, to ■mulct the defendant in an additional sum, to be handed oyer to the plaintiff as a punishment for the wrong he has done to ■the plaintiff. The judgment must be reversed, and a new trial granted. The other Justices concurred. See People v. O'Brien, 60 Mich. 8. See Manning v. Bresnahan, 68 Mich. 584 (head-note 4); Gass v. Van Wagner, Id. 610 (head-note 1).	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Sherwood, J. The bill in this case is filed by the com plainant, and prays that a certain execution levy upon his house and lot, situate in Grand Rapids, may be set aside and declared void, for the reason that at the time of the levy the property consisted of one lot worth less than $1,500, and was his homestead. The case was heard in the Kent circuit, before Hon. Robert M. Montgomery, circuit judge, upon pleadings and proofs, and a decree was made granting the relief prayed. After a careful inspection of the record, I have no doubt of the correctness of the conclusion reached by the learned circuit judge. The following facts, I think, are sufficiently established by the pleadings and proofs in the case: The complainant purchased the lot in question, which was then vacant, and which was about 47 feet wide, on Plainfield avenue, of Charles W. Coit, on the twenty-fourth day of October, 1881. He has never owned any other real estate since. The lot contains about an acre, consisting of part of a platted lot, and was located, when bought, in a thickly-settled district, — residence property mostly on either side of it. When the property was sold to the complainant, the vendor understood it was for a homestead, and the complainant purchased it with the intention of making it his homestead, as well as a place upon which he could carry on his business, which was selling meat. He paid $800 for the lot, — paid $200 down, and gave a mortgage upon the property to secure payment of the balance, —and commenced improving the lot November 10 after the purchase. At the time of the purchase he was engaged in carrying on a meat-market on the same street, near the property. His ground-lease having expired, he moved the little shop in which he was doing business onto his own lot, placing it about 50 feet back from the street. His plan, however, was to erect a building on the front of his lot sufficiently large and suitable for carrying on his little meat business, and fur nish him a comfortable residence for bis family; and very soon after taking possession of bis lot, in tbe month of November, be made an unsuccessful effort to raise tbe money to build such a building. He then decided to erect so much of tbe building as would be necessary for bis business purposes, and in such manner that he could thereafter add thereto tbe part he bad intended for the residence of bis family when be could get tbe necessary means. This be did, and in January following built an ice-house on the lot for the use of bis market and family, and in November, 1882, built a barn upon tbe premises for tbe accommodation of tbe horse be used in his business. In this condition the complainant used the property during tbe year 1883, making several efforts, however, during tbe year, with one or more parties, to negotiate a contract for building tbe residence in connection with his market as hereinbefore mentioned. He did not succeed in making tbe arrangement for putting up tbe addition to bis building, which was to constitute tbe apartments and home for bis family, until tbe month of July, 1881, when be made a contract for tbe lumber, and dug a cellar for tbe building. Tbe party who furnished the lumber for tbe completion of tbe building commenced delivering it upon tbe ground on the second day of August, 1881, and tbe building was completed, and tbe complainant moved into it, with bis family, a few months thereafter. After tbe building was completed, tbe assessor valued tbe property at $1,000. From tbe time the complainant took possession of the property until be moved bis1 family into tbe building, be occupied tbe property himself. He used the building first erected for bis meat-market, fenced tbe lot, and raised upon it vegetables for bis family, and some feed for his horse, and, so far as we can discover from tbe record, designed tbe property for his homestead, and so expressed himself in regard to the property whenever be bad any con versation upon the subject of its improvement, or whenever any person, in like circumstances, would be likely to give-expression to his intentions. On the sixth day of August, 1884, defendant held a judgment in his favor against the complainant, and caused the-same, on that day, to be levied upon the property. Some time after the levy was made, complainant notified defendant that the property levied upon was his homestead, and asked him to release and discharge his levy. This defendant refused to do, claiming that the property was not complainant’s homestead, and instructed the sheriff to proceed with his levy, and advertise and sell the property, who proposed to obey the instruction of defendant; and thereupon the complainant filed this bill. The only question in the case needing consideration is, was-the property the complainant’s homestead ? There can be no question, if it was, but that the defendant’s levy clouded the complainant’s title. We think it was shown to be within the constitutional limit as to size and value. It was incumbered by mortgage at the time of the levy to the amount of about $478; and it sufficiently appears that, as fast as' the-complainant was able, he improved the property, with a view of making it his homestead, and had really commenced the-erection of that portion of the building which he designed for, and which, as soon as completed he occupied for, the-residence of himself and family. W'e have no doubt about the good faith in which all the improvements were made, and-under such circumstances it would be, in our judgment,, inequitable and .unjust to attempt to divest the property of its homestead character. We think the case falls clearly within the spirit of the Constitution and statute providing for the exemption of a homestead, and the decisions of this Court made thereunder. A city lot purchased with the intention of making it a homestead for the purchaser and his family will be exempt from levy and sale on execution from the time of purchase, even though unimproved and without a dwelling thereon, if the purchaser encloses it and uses and occupies it with the constant purpose of making it his home, and uses the proceeds thereof, and such means as he can procure, within a reasonable time, to erect a house thereon for his family, provided it does not exceed in quantity and value the constitutional limit. What will be regarded as a reasonable time must necessarily depend upon the circumstances of each particular case. The following authorities will be found to give support to the views herein expressed: Reske v. Reske, 51 Mich. 541; Barber v. Rorabeck, 36 Id. 399; Bouchard v. Bourassa, 57 Mich. 8; Griffin v. Nichols, 51 Id. 575. See, also, Scofield v. Hopkins, 61 Wis. 370 (21 N. W. Rep. 259). We do not think, under the circumstances of this case, that the time taken by the complainant to improve the lot, in such manner as to make a comfortable home for himself and family, was unreasonable; and the decree of the circuit judge must be affirmed. Campbell, O. J., and Champlin, J., concurred. Morse, J., did not sit.	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Champlin, J. The Flint & Fere Marquette Railroad Company filed its petition in the circuit court for the county of Saginaw for the purpose of condemning private property for the public use, under the power of eminent domain granted to railroad companies under the general railroad laws of this State. The petition sets forth that the petitioner had surveyed the route for a proposed spur track, to be owned and operated by it, connected with its main line at apoint near the west bank of the Saginaw river, in Saginaw county, and extending thence southerly, on the westerly side of Saginawriver, across the track and right of way of the “Saginaw Branch of the Detroit & Bay City Railroad,” and terminating in the city of Saginaw. The petition then sets up the fact of the survey and map of the route of the spur track, and the location thereof accordingly, the certificate and indorsement thereof by a majority of the directors, the approval thereof by the commissioner of railroads, and the filing of the map, certificate, and approval in the register’s office of Saginaw county. It then .states that the property therein described— “Is required for the purposes of operating said railroad, and for the purposes of operating said spur-track, and that .said property is required for public use, to wit, for the purpose of operating your petitioner’s spur track railroad across ■said Saginaw Branch of the Detroit & Bay City Railroad;” ■and “ the property to which your petitioner seeks to acquire title under the statute is required for public use.” The petitioner then describes the property, and proceeds .to state that— “The right and title which your petitioner seeks to acquire in and to the premises above described is the right and privilege of using the same for the purpose of constructing and operating its said spur track across the track and right of way of the said Saginaw Branch of the Detroit & Bay City Railroad, at the point above named, as designated on said map; the right of cutting the rail of the said Saginaw Branch of the Detroit & Bay City Railroad Company at such crossing, and inserting therein suitable frogs at the grade of the said Saginaw Branch of the Detroit & Bay City Railroad; and the right of using said premises jointly with the Detroit & Bay City Railroad Company, and its lessee, the Michigan Central Railroad Company, absolutely and fully as a railroad track for the passing and repassing of trains on and over the same, and also the right of maintaining and repairing the said track and crossing.” The petition contains the other allegations required by statute to be embraced in a petition filed for the purpose of acquiring title to real estate for railroad purposes; and it is not necessary to recapitulate them here. The respondents appeared, and moved the court to dismiss the petition, upon the ground “that the court had no jurisdiction to entertain the proceedings, or to appoint the com missioners prayed for,” which, was overruled, and commissioners were appointed. The respondents the Detroit & Bay City Bailroad Company and the Michigan Central Bailroad Company then requested the court, in writing, to instruct the commissioners that, in determining the damages and compensation to be awarded the respondents, they should take into account the following: “ 1. The value of the property taken. “ 2. The injury to the property of which the property taken is a part. ■ “3. That there may be required of the respondents the expense of putting in and maintaining interlocking switch and signal system. “4. That the capacity of the respondents to carry over this part of its road may be diminished. “ 5. That the speed. of the respondents’ trains may be diminished. “ 6. That watchmen and signals may be required to be kept at the crossing by respondents. “7. That respondents’ trains will be required to stop before coming to the crossing. “ 8. That, by reason of the crossing, time may be lost in the running of its trains. “9. That damage may be done to respondents’ bridge across Saginaw river by operating its road as required by the placing of this crossing at the proposed point.” The court refused to instruct the commissioners as requested, and gave them no instructions whatever. The commissioners were sworn, and-proceeded with the inquisition. The respective parties appeared before them by counsel, and introduced testimony. The commissioners also viewed the premises, and made their report to the court in writing, in which they stated that,— “ After hearing the proofs and allegations of the parties, and after all the testimony was closed, we, all being present and acting together, ascertained and determined that it is necessary to take and use the real estate and property described in the petition [describing it] for the purposes of the Flint & Pere Marquette Railroad Company, as mentioned and set forth in its petition, and that such taking and using of such property is a necessary public use of the same, and is a necessary public benefit. “Also, we, all being present and acting together, at the same time ascertained, determined, and appraised the damages and compensation which ought justly to be made by said Flint & Pere Marquette Railroad Company to the party or parties owning and interested in said real estate and property proposed to be taken for the purposes in said petition described, as well for the value of the same as for the damages resulting from such taking, at the sum of one hundred dollars.” This report was filed on the seventh day of August, 1886, and on the tenth, the question of the confirmation of the report being before the court, the parties being present by their counsel, it was agreed between them that whatever sum is or should be awarded should be awarded to the respondents jointly; and thereupon, on motion of counsel for petitioner, after hearing counsel for respondents in opposition thereto, it was ordered that the report be confirmed. Afterwards, and on the sixteenth of August, a more formal order was entered. Counsel for respondents filed in said proceedings their exceptions thereto, as follows: “In thb Circuit Court roe the County or Saginaw. “ In the Matter of the Petition of the Flint é Pere Marquette Railroad Company v. The Detroit & Bay City Railroad Company, The Michigan Central Railroad Company, and the Union Trust Company of New York. “ In this proceeding, the said respondents, the Detroit & Bay City Railroad Company, the Michigan Central Railroad Company, and the Union Trust Company of New York, and each of said respondents, except to the proceedings taken, on the following grounds: “ 1. That the said court refused to grant the respondents’ motion to dismiss the petition filed in the -cause upon the ground that the court has no jurisdiction to entertain the proceedings, or to appoint the commissioners prayed for. “2- That the court had no jurisdiction to appoint the said commissioners who were appointed in said cause. “ 3. That the court refused to instruct the said commissioners as requested in writing by the respondents the Detroit & Bay City Eailroad Company and the Michigan Central Bailroad Company, which requests are filed in said proceedings, and are hereby referred to, and that the court refused to give each of said several requests; and this exception is to the refusal to give separately each of said requests. “ 4. That the respondents requested the said commissioners to take into account, in determining the damages and the compensaron to be awarded, each of the said several grounds of damages specified in tbe said requests to said court for instructions to said commissioners, filed in writing as aforesaid, and in their report to state upon which of said several grounds they allowed damages and compensation; and that the said commissioners neglected and failed to comply with the said respondents’ said request to them, and did not take into account said several grounds for damages and compensation, and did not state in their report upon or for which of said several grounds they allowed damages and compensation. “5. That the said commissioners did not state, in their .said report, what were the grounds upon which they allowed damages and compensation, so that these respondents are not able to determine what were the grounds for or upon which damages and compensation were allowed. “ 6. That the said commissioners allowed for damages and ■compensation only for the value of the property taken. “ 7. That the said commissioners did not take into account each of the said several grounds for damages and compensation stated in said requests. “8. That the damages and compensation allowed and reported by said commissioners were and are insufficient, and in amount are inequitable and unjust towards these respondents. “ 9. That the statute under which the commissioners acted in determining the amount of damages and compensation to be allowed is unconstitutional, and is also in terms such as to render it impracticable for the commissioners acting under it to determine what are proper damages and compensation to be allowed. “ 10. That the said court had no jurisdiction to confirm the report of the said commissioners. “11. That the said court confirmed the report of the said commissioners, and the said respondents appeal from the said proceedings to the Supreme Court of the State of Michigan.” The objections specified in such appeal are as follows: “ 1. That the said court refused to grant the respondents’' motion to dismiss the petition filed in the cause, upon the ground that the court has no jurisdiction to entertain the proceedings, or to appoint the commissioners prayed for. “2. That the court has no jurisdiction to appoint the said commissioners who were appointed in said cause. “ 3. That the court refused to instruct the said commissioners as requested in writing by the respondents the Detroit & Bay City Railroad Company and the Michigan Central Railroad Company, which requests are filed in said proceedings, and are hereby referred to, * * * and that the court refused to give each of said several requests; and this exception is to the refusal to give separately each of said requests. “4. That the respondents requested the said commissioners-to take into account, in determining the damages and compensation to be awarded, each of the said several grounds of damages specified in the said requests to said court for instructions to said commissioners filed in writing, as aforesaid, and in their report to state upon which of said several grounds they allowed damages and compensation, and that the said commissioners neglected and failed to comply with the said respondents’ said requests to them, and did not take into account said several grounds for damages and compensation, and did not state in their report upon or for which of said several grounds they allowed damages and compensation. “5. That the said commissioners did not state in their said report what were the grounds upon which they allowed damages and compensation, so that these respondents are not able to determine what were the grounds for or upon which damages and compensation were allowed. “ 6. That the said commissioners allowed for damages and compensation only for the value of the property taken., “ 7. That the said commissioners did not take into account each of the said several grounds for damages and compensation stated in said requests. “ 8. That the damages and compensation allowed and re ported by said commissioners were and are insufficient, and in amount are inequitable and unjust towards these respondents. “ 9. That the statute under which the commissioners acted in determining the amount of damages and compensation to be allowed is unconstitutional, and is also in terms such as to render it impracticable for the commissioners acting under it to determine what are proper damages and compensation to be allowed. “10. The said court has no jurisdiction to confirm the-report, of the said commissioners. “ 11. That the said court confirmed the report of said commissioners. ” How. Stat. § 3337, authorizing appeals to be taken to the Supreme Court from the appraisal or report of the commissioners, requires notice of such appeal to be given to the opposite party, and enacts that— “ Such notice shall specify the objections to the proceedings had in the premises, and the Supreme Court shall pass on such objections only; and all other objections, if any, shall be deemed to have been waived. Such appeal shall be heard by the Supreme Court at any. general or special term thereof, on notice thereof being given according to the rules and practice of the Court. On the hearing of such appeal, the Court may direct a new appraisal before the same or new commissioners or jury, in its discretion.” Under this statute, it was held, in the case of Michigan Air Line Ry. v. Barnes, 44 Mich. 225, that— “ The obvious meaning of the statute is that the error and defects complained of shall be pointed out with such particularity that the attention of the appellee and of the Court will be at once precisely directed to them.” The first, second, tenth, and eleventh objections contained in the notice of appeal are open to this criticism. The particular want of jurisdiction is not specified. When a statute confers upon a court of record jurisdiction over certain proceedings, a general objection that the court has no jurisdiction amounts to nothing. If certain steps have been omitted which it is deemed by counsel necessary to have been taken in order to confer jurisdiction, the particular omission should be pointed out in the objection. This was not done in this case, and the statute is explicit that, unless the objections to the proceedings are specified, they shall be deemed to have been waived. Attention is called in the briefs of counsel to what are claimed to be defects in the petition, in this: 1. That it prays simply for a crossing at grade. 2. That it does not aver that the taking of the property described in it is necessary for public use. Were there any objections specified under which these points could be considered, I should still be of opinion that neither of them are well taken. The petition sets up with sufficient certainty the rights which the petitioner seeks to acquire, and alleges that the property which is thus sought is required for the public use. It is- true, the statute provides that the petition shall state that the taking of the property is necessary for public use. But the word “ required,” in the sense in which it is used in the petition in this case, is synonymous with the word “necessary.” It conveys the same meaning. At the time these proceedings were being had, the case of Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. R. Co., 62 Mich. 564, was under advisement, but the decision had not been handed down. It was claimed upon the argument that, in view of what was said in that case, the petition in this case is fatally defective in not stating in a threefold manner that the petitioner desired to cross either at grade, above, or below the respondents’ track, and that the jury should award damages and compensation based upon each method of crossing as should thereafter be determined by the crossing board provided for in Act 174 of the Session Laws of 1883. I do not understand that to be the scope of the decision in that case. I regard what was said in that case about a proper petition as merely suggestive, and as indicating that it would be proper for the commissioners or jury to receive evidence bearing upon each mode of crossing. The statute requires that the right to cross or connect shall be acquired by purchase or condemnation, in the same manner as prescribed by the act for obtaining title to real estate ■or other property, and the act prescribes what the petition shall contain. If the petition contains what is required by the act, it is difficult for me to see how it can be fatally defective for not containing statements not so required; and there is no requirement that the petition shall state that the petitioner desires to acquire the land in question for the purpose of a crossing in either one of the three ways which the crossing board shall thereafter determine shall be done. The law presumes that the petitioner knows whether the railroad company desires to cross at grade or otherwise, and that it will petition to acquire the right to cross in the manner it deems most suitable for its own interests. If the petition defines the manner, the damages would naturally be awarded on that basis. The company, however, will still have no right to cross, or in any manner interfere with, the respondents’ property, in case of disagreement as to manner of crossing, until the crossing board has determined the manner of crossing, — whether at grade or otherwise; and, if it should turn out that the crossing board should determine that the crossing should not be made in the manner described in the petition upon which the right was acquired, it would necessitate a new petition to condemn .the right to cross in the manner designated by the board, and an award of damages based upon that petition. But this result, in practice, will not be liable to happen, because the manner of crossing is dependent upon certain physical conditions of the locality, and the self-interest of .the crossing road will always prompt a crossing either over or under, where it can be done without injustice to either company. It, moreover, is common knowledge that a crossing either over or under another road would cause much less damage to the road crossed than a crossing at grade, and consequently damages which are assessed or awarded upon the basis of a crossing at grade must necessarily be greater than either of the other two methods; and, if properly allowed, it is not perceived how it can be a ground of serious complaint that another manner of crossing, causing less damages, may be adopted by the crossing board. My own opinion is that the statutes ought to be so amended, with reference to crossings and connections of one railroad with another, as to require the company desiring to cross to apply, in the first instance, to the crossing board by-petition, and notice to the other railroad company, designating the point at which it is designed to cross, to determine the manner of crossing in case the right to cross is acquired by the proper condemnation proceedings. The jury or commissioners would then be apprised of the manner in which the right would be exercised, and the proof of damages and compensation be directed to the exact point. As the statute stands now, it seems rather incongruous. In the case last referred to the points above discussed were not the ones upon which the decision was based. The objections to the petition, which we held to have been well taken, were that it showed no effort to obtain the property by agreement with the respondents in that case before taking proceedings for condemnation; that it sought by petition to obtain greater rights in the respondents’ property and franchises than the law allows in the condemnation proceedings; and that it did not properly describe the property which it sought to condemn. The petition in this case is open to none of these objections; and, as neither these nor others are pointed out in the objections upon which the appeal is based, the petition need not be further noticed. I do not consider that any error was committed by the court in refusing to instruct the commissioners at the request of the respondents. The court might have done so had it thought proper. But it was not a duty imposed by law, and its instructions would not have been binding upon the commissioners had it done so. This has been settled by our previous adjudications, which were based upon satisfactory reasoning, and I see no good object to be accomplished in overruling them. Toledo, A. A. & G. T. Ry. Co. v. Dunlap, 47 Mich. 466; Port Huron & S. W. Ry. Co. v. Voorheis, 50 Id. 510; Michigan Air Line Ry. v. Barnes, 44 Id. 226. The ninth objection, relating to the uneonstitutionality of the statute authorizing private property to be condemned for the purpose of constructing spur tracks, was not insisted upon or argued upon the hearing, and I therefore do not pass upon it. The fourth and fifth objections are based upon the failure of the commissioners to specify, in their report, the several grounds upon which they allowed damages and compensation. The statute requires the commissioners to— “ Ascertain and determine the necessity of taking and using any such real estate or property for the purposes described ; and, if they deem the "same necessary to be taken, they shall ascertain and determine the damages or compensation which ought justly to be made by the company therefor to the party or parties owning or interested in the real estate or property appraised by them.” The commissioners in this case, after determining upon the necessity of the taking for the public use, reported that they had— “ Ascertained, determined, and appraised the damages and compensation which ought justly to be made by said Flint & Pere Marquette Railroad Company to the party or parties owning and interested in said real estate and property .proposed to be taken for the purposes in said petition described, as well for the value of the same as for the damages resulting from such taking, at the sum of one hundred dollars.” It appears that the commissioners have complied with the statute in the respect complained of. The statute nowhere requires that the commissioners shall specify each particular item of damage or compensation allowed. On the contrary, it contemplates that a general finding will be made. In the case of Michigan Air Line Ry. v. Barnes, 44 Mich. 222, the same objection was made, and decided by this Court. In that case the jury reported in general terms, and it was held sufficient, and that it was not necessary to specify what damage was allowed on each separate cause. And in Port Huron & S. W. Ry. Co. v. Voorheis, 50 Mich. 511, it was said that— “We regret the finding of the commissioners does not give us more information upon the subject; but there is nothing in the statute or practice yet established requiring them to be more specific in their report of items for which they allow damages or compensation, and there is no authority given to compel such report if they fail to do so.” In view of the statute and our decisions above cited, I think the fourth and fifth objections must be overruled. The sixth, seventh, and eighth objections may be considered together, and are all embraced in the eighth. The testimony taken upon the inquest has, by consent of the parties, all been returned, and is embodied in the printed record before us. It appears from this that the respondents placed before the commissioners all the testimony they desired upon each element of damages claimed by them which would result to them by reason of the taking petitioned for; and the commissioners, after consideration of all the testimony, have reported that they have appraised the damage and compensation as well for the value of the property taken as for the damages resulting from such talcing ; and unless the damages awarded appear to be grossly inadequate, or so much so as to give rise to the inference that the commissioners must have acted upon a wrong basis of estimating the damages, the award should not be disturbed. The compensation must depend upon what property, rights, or franchises are taken by the petitioning railroad company, and the damages consequent thereon to the railroad company crossed. In ordinary cases, the taking by a railroad company vests in it the exclusive use of the right of way for railroad purposes; and the statute provides that'— “ All persons who have been made parties to the proceedings, either by publication or otherwise, shall be divested and barred of all right, estate, and interest in such real estate, franchise, or other property until such right or title shall be again legally vested in such owner.” The effect of this statute is to deprive the owner of the use of the land taken; but, when one railroad company acquires the right to cross the track and right of way of another, the case is different. Here the exclusive use is not taken. The damages do not arise from the deprivation of the use, but from interference with the exclusive use for railroad purposes ; and hence the award is governed by different considerations than those applied when a railroad company seeks to condemn the right of way over lands of private persons. In one case the value of the land taken would be included in the damages and compensation; in the other there is no reason why it should be, because the owner, the railroad company, is not deprived of its use, nor is it divested or barred of all right, estate, and interest therein. The right acquired by the condemnation proceedings is the right to cross. The right condemned is the right to an exclusive use, which by virtue of the condemnation proceedings becomes converted into a common use as a right of way for both companies. The taking is not absolute, but qualified. If the value of the land is included, and compensation made therefor, as in other cases, it will divest the railroad company of its interest and estate in the right of way included in the crossing, and it would follow that, if the company whose land was crossed desired to lay additional tracks along its original right of way,'it would be obliged to acquire the right to do so by condemnation proceedings against the crossing road, and pay again for the value of the land, and all expenses and consequential damages. It is not the contemplation of the law that a railroad company’s right of way shall be severed by every railroad that crosses it, and its estate divested and transferred to the railroad company which crosses its right of way. Lehigh Valley R. R. Co. v. Dover & Rockaway R. R. Co., 43 N. J. Law, 528. The statutes upon the subject .must be construed together. The company organizing under the general railroad law does so in view of the statute which .authorizes other roads to cross its right of way, by making just compensation. In the case of Grand Rapids, N. & L. S. R. R. Co. v. Grand Rapids & I. R. R. Co., 35 Mich. 273, it was said that the “franchises or property of one railroad company may be taken' for the construction of another in all cases where the property of an individual might be, upon making compensation therefor.” In Grand Rapids v. Grand Rapids & I. R. R. Co., 58 Mich. 648, it was held that the damage done to a railroad by having a highway run across it must necessarily include all additional expense entailed by such a crossing in making it safe and providing guards against accidents; that, under the Constitution, there must be just compensation, and this cannot be denied by law or by verdict. See, also, People v. Lake Shore & M. S. Ry. Co., 52 Mich. 277. What elements of damages should be considered and included in the sum to be awarded as just compensation are not easily determined with certainty. The general rule of dam ages is applicable to investigations of this kind, — that they cannot be allowed 'on mere conjecture, speculation, fancy, or imagination; they must be real, tangible, and proximate. The respondents claim that they were entitled to damages— 1. For the cost of maintaining signals or crossing system. 2. For cost of watchihan. 3. Cost of stopping trains. 4. Damages that might be done to respondents’ bridge across Saginaw river in stopping and starting trains thereon within 800 feet of the crossing. 5. Damages occasioned by loss of time in running trains. 6. Damages caused by reason of the diminished capacity of the road. 7. That respondents might be required to put in an interlocking switch and signal system, and maintain the same. It is not claimed that the evidence introduced was of that nature which would authorize , the commissioners to award damages upon any of the claims made except the first three, and upon these it is claimed that the evidence showed that the result of establishing a crossing at the point named in the petition would impose upon the respondents an increased expense each year as follows: Cost of maintaining signals or crossing system, $ 50 Cost of watchman,.....425 Cost of. stopping trains, - 300 Being a total of • - - - - $775 The commissioners having allowed only $100 for the land taken and the consequential damages, the respondents claim such allowance is grossly inadequate in view of the above items which the evidence tended to establish. The question as to what elements of damages should enter into and form a basis of an award when one railroad crosses another has been before the courts of some of our sister states; and, while the decisions have not been entirely uniform, the principles underlying them all point to an allowance which shall secure a just compensation within the recog nized rules of evidence relating to damages, as including all loss or injury which, is the direct result o'f the appropriation of the land to the new use. They also recognized that there are elements of damage which, aside from being uncertain, remote, or conjectural, are the consequence of regulations by the legislature designed to secure the safety of the public, which are imposed upon all railroad companies alike, and which, in so far as they do not involve any structural change in the property itself in order to make it conform to the new condition, do not afford a basis for compensation. The result of the decision in Massachusetts was announced by Mr. Chief Justice Gray in Mass. Cent. R. R. Co. v. Boston, C. & F. R. R. Co., 121 Mass. 124, tersely as follows: “A railroad corporation across whose road another railroad or a highway is laid out has the like right as all individuals or bodies politic and corporate, owning land or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Com. v. Boston & M. R. R., 3 Cush. 25, 53; Old Colony R. R. Co. v Plymouth, 14 Gray, 155; Grand Junction R. R. Co. v. County Com’rs of Middlesex, Id. 553. But it is not entitled to damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Lodes and Canals v. Nashua de L. R. R. Co., 10 Cush. 385, 392; Boston & W. R. R. Co. v. Old Colony R. R. Co., 12 Cush. 605, 611; S. C. 3 Allen, 142, 146; Old Colony R. R. Co. v. Plymouth, 14 Gray, 155.” In Illinois the principle was laid down in the case of Chicago & W. L. R. R. Co. v. Englewood Connecting Ry. Co., 115 Ill. 375 (S. C. 23 Amer. & Eng. R. R. Cas. 56), founded upon the manifest fact that the value of a railroad property outside of the advantages of location and amount of business it controls* consists in the strength, permanency, and durability of its structures, and its adaptability to and capacity for doing railroad business;— “That, whenever the proposed condemnation and subsequent user will injuriously affect such a property in either of these respects, the injury thus occasioned will form a proper basis for the /assessment of damages in a proceeding of this kind.” In this case the court on the trial excluded all evidence from the jury tending to show that either the value of the respondent’s road, or its capacity to do the business of the company, would be impaired by the proposed crossing; and the court, upon á review of the authorities in that state* held that the court below erred. It had previously been held by that court that the law requiring trains to stop before reaching and crossing another road was a police regulation* and might be maintained or repealed at the pleasure of the legislature; that it would therefore be mere conjecture as to what, if any, damages would be sustained for the delay, inconvenience* and trouble produced by complying with the requirements of the statute; and that, independent of the statute, the same duty would be imposed* and that it was too vague and uncertain to be an element of damages. Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 105 Ill. 110. The point was more fully considered in an opinion filed at the same time with that above cited, and reported in the same volume, at page 388, in which a rehearing was denied at the March term* 1883, in which the majority of the court held that damages occasioned by the stopping of trains could not be considered in awarding compensation (Chicago & A. R. R. Co. v. Joliet, L. & A. Ry. Co.). These decisions have not been overruled in that state. Such is also the conclusion reached by the supreme court of Ohio. Lake Shore & M. S. Ry Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604. I think tbat the stopping of trains, whether required by the law as a police regulation, or by the duty of the company in order to secure the safety of persons transported, is not an element which can be considered by the jury in estimating the damages and compensation to be made. The general railroad law requires trains to come to a full ■stop, before crossing the track of another railroad, not nearer than 200 nor more than 800 feet from the crossing. It regulates the precedence which trains shall have in crossing, and prescribes penalties for disobedience of the regulations. These are police regulations enacted by the Legislature, -designed to promote the public safety, and are as binding upon an existing road as one newly organized. They stand •upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedience to it3 requirements. It is subject to amendment or repeal at any time the Legislature may see ñt; and for this reason, as well as for the absolute impossibility of determining in advance the number of trains which in the future operation of the road would be required to stop at such crossing, the damage arising therefrom is uncertain and conjectural. But, aside from this, any inconvenience or annoyance or loss suffered in obeying the police regulations of the sovereign authority is damnum absque injuria. I do not agree with Mr. Justice Scott, in Chicago & A. R. R. Co. v. Joliet, L. & A. Ry. Co. supra, that, so far as the defendant would suffer injury on account of having to stop trains at the crossing for reasons other than the compliance with the statute, damages might be given. No stoppage would be required, independently of the statute, other than that which would arise from the duty of the company to operate its road in such manner as to avoid danger from .collision at the crossing. In the absence of the statute, the duty imposed by the eir cumstances upon the corporation to adopt and observe proper precautions to protect the lives of persons committing themselves to its care takes the force of law, and has its foundation in the same principles which underlie police regulations, namely, the protection and welfare of the public. In other words, the police regulation requiring trains to stop does not create a new duty, but compels the observance of an existing duty by the corporation. The statute or duty merely regulates the mode in which the corporation shall exercise its ■franchise. This incident to crossing takes no land, requires no structural change in the property, and deprives the corporation of no right granted by its charter. It does not lie within the scope of injuries for which compensation should be made. The cost of maintaining signals or a crossing system would be a proper matter for the consideration of the commissioners, as well as cost of watchman. These expenses, however, are subject to contingencies which may cause the damages to fluctuate, and possibly be reduced to a nominal sum. The evidence bearing on all these contingencies was introduced before the commissioners. It was shown that if the interlocking switch and signal system was put in, which, under our decision in the case of Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. R. Co., 62 Mich. 564, must be done entirely at the expense of the petitioning company, it would reduce the expense of maintaining to nearly a nominal sum, to be borne equally between the two roads; and, although it does not appear in the record before us that this was the system adopted by the petitioner, yet it was brought to our attention, upon the argument, that the crossing board had determined that the interlocking switch must be put in; and a stipulation,was made in this Court, based upon the construction of such switch, not to disturb petitioner in its possession as a condition for hearing the cause in this Court. In view of these facts, I cannot say that the damages-awarded are so grossly inadequate as to warrant us in sending the inquisition back to the same or a new commission. I think the objections not waived should be overruled, and the report of the commissioners, and the confirmation thereof, should be affirmed. Sherwood and Morse, JJ., concurred. Campbell, C. J. I have great doubts whether the judgment for damages is not very, much too low; but I concur in the opinion that, upon the imperfect means of estimation, there is difficulty in disturbing it. See Toledo, A. A. & N. M. Ry. Co. v. D., L. & N. R. R. Co., 63 Mich. 645. How. Stat. § 3335. How. Stat. § 3337. See Toledo, A. A. & N. M. My. Co. v. D., L. & N. R. R. Co., 62 Mich. 564. How. Stat. § 3376; amended by Act No. 174, Laws of 1883.	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Morse, J. This is an action of trover brought by the ■plaintiff to recover certain property described in and covered by two chattel mortgages, executed and delivered to him by Thaddeus Ganong, his father. On the twenty-first and twenty-fourth days of November, 1884, the defendant Holland, who is a constable, levied upon the property, the execution being in favor of the defendant ■Green, and took the same to the house of Green, where he kept it until the second day of December, 1884, when he sold ifc at public auction. When taken upon the execution, the-property was in the possession of the mortgagor, ThaddeusGanong, but plaintiff claimed that he was entitled to the immediate possession of the goods by agreement with his father, and had the right to hold the same until the mortgages were due or paid. We think the evidence of such an arrangement was admissible. Before the sale, the plaintiff, by his attorney, demanded of the defendants, who were apparently acting together in the possession of the property, each separate article. Upon such demand being refused, he forbade the sale, stating that the plaintiff held two mortgages upon the goods, and that the-property could not be lawfully sold in parcels. The constable and the defendant Green, plaintiff in execution, went on with the sale. The articles were sold separately, and bid off by various persons, Green being a purchaser of. some of the goods. The property was sold by the constable on Green’s premises, by the direction of Green. After the completion of the sale, and before the property was taken away by the purchasers, the attorney of plaintiff again demanded all of the-property of both Green and the constable. The de,mand was again refused. No claim or intimation was made by plaintiff’s attorney that the sale was invalid for any other reason than that it was sold in parcels, in violation of the rights of' the mortgagee. The constable sold the property, disregarding plaintiff’s claim, on the ground that the mortgages were fraudulent and void as against creditors. On the trial in the circuit court the defendants showed a-valid judgment, execution, and levy. The execution was issued November 21, 1884, and was returnable within 60 days-from its date. The levy was made upon a portion of the property on the same day, and on the balance November 24,. 1884. Before notice of sale, $250 of the property was set off to Thaddeus Ganong, who received the same, as exempt property, with the knowledge of plaintiff. The notice of sale was regular, and conformed to the statute, excepting that it-did not state the names of the parties in the suit upon which the execution issued. For this reason the circuit judge held that the notice was defective and void, and instructed the jury to ñnd a verdict for the plaintiff. This ruling and instruction is assigned as error. The defendants claimed, and introduced testimony tending to show, that the mortgages were. void. But the court-,, under his view of the case, held that the defendants had no standing to contest the plaintiff’s title because of the void sale. Under the statute regulating constables’ sales, previous to 1879, there was no provision as to the form of the notice in respect to the names of the parties. It was held in Perkins v. Spaulding, 2 Mich. 160, that while it would be proper and desirable to specify in such notice the name of the execution defendant, the omission to do so would not invalidate the sale. See, also, Manwaring v. Jenison, 61 Mich. 143. In 1879 the Legislature amended the statute so' that it now reads: “Such notice shall describe the goods and chattels, and shall contain the names of the parties to the suit upon which the execution issued, and shall be put up at least five days-before the time appointed for the sale.” How. Stat. § 6980. The plaintiff claims that this statute is mandatory; that-the intent of the Legislature, by this amendment, was to meet the ruling in Perkins v. Spaulding. But statutes of this nature have seldom been held by the courts to be mandatory. It has been said that it is the policy of the law to-uphold judicial sales, when collaterally attacked, by securing, purchasers, as far as possible without-prejudice, to others, against risks; and if every neglect of duty upon the part of an officer would operate to invalidate such sale, great injury would result to both debtor and creditor, for no prudent man would give a fair price for property if lie was liable to be divested of his title by reason of the laches of the officer. Smith v. Randall, 6 Cal. 47; Blood v. Light, 38 Id. 649; Webber v. Cox, 6 T. B. Mon. 110; Hayden v. Dunlap, 3 Bibb, 216; Freem. Ex. § 286. And in the case of constables’ sales, where the law does not provide for the filing or preservation in any public office of the notice of sale, to require such notice to comply with the ■statute to make a sale valid, would, as against bona fide purchasers at such sale, result in great hardship and injustice. It would be impossible, in most cases, a few months after such sale, to show that the statute was followed, and lead to uncertainty and doubt as to the title to property so purchased, which could be settled only by oral testimony, as conflicting, ■in the majority of instances, as the interests of the parties ■concerned. But if the intent of the Legislature is plain, such intent must govern. I do not, however, consider it necessary in the present case to decide what the intent of the Legislature was in amending this statute. There is no provision declaring a sale not made in pursuance of the statute null and void; and, therefore, the intent is not free from doubt. We have no good-faith purchasers to deal with in this action, as the ■■suit is brought directly against the constable and the execution creditor, for converting the property, by the sale of it, under this notice. I do not think the plaintiff had a right, under the circumstances shown by this record, to contest the validity of this notice. At the time when the plaintiff’s attorney first demanded this property, the constable was holding it, and was ■entitled to the possessiqn, under a lawful levy upon a valid judgment and execution. The attorney in behalf of the plaintiff rested upon his rights under the mortgages, and forbade the sale in parcels. Neither before or after the sale did he raise any question of the validity of the sale because of the defect in the notice. If he had done so, and the attention of the defendants had been challenged to this defect, it is reasonable to infer that the sale would have been declared off, and a new sale ordered', under a proper notice, which could have been done within the life of the execution The plaintiff saw fit to base his objections to the sale upon his mortgage rights, and there he must stand. By his action the defendants were led to believe that he was going to contest the sale of the property because it was sold in opposition to, and in derogation of, his mortgages, and acted accordingly. He cannot, in justice, be allowed, after the property has passed out of their hands to ‘ the purchasers, to take advantage of this defect in the notice, to their disadvantage. He is estopped from now questioning such sale, except upon the ground assigned at the sale, as he' must be presumed to have waived all other defects by his action at that time. Freem. Ex. § 286; Rorer, Jud. Sales, § 472. The defendants had a right to go to the jury upon the question of the validity of plaintiff’s mortgage lien. If his mortgages, or one of them, were valid, the sale of the property in parcels was void, and he can recover. If his mortgages were fraudulent, or had been paid, the sale cannot be questioned by him in this suit. The judgment of the court below is reversed, with costs, and a new trial granted. The other Justices concurred. The mortgages were also signed by the mortgagor’s wife. See Winslow v. Jenness, 64 Mich. 88, and note.	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Ohamplin, J. Piaintiff brought suit against the city of Detroit to recover damages occasioned by a defective sidewalk on Warren avenue west. The right of recovery is based upon sections 1442 to 1446 of Howell’s Statutes, as amended by Act No. 214 of the Session Laws of 1885, enjoining upon municipal corporations the duty of keeping the sidewalks therein in reasonable repair, and reasonably safe and convenient for public travel. No question is made upon the sufficiency of the declaration in alleging a cause of action in case the statute is legal and valid. The defendant interposed a general demurrer, which was sustained by the court below, and judgment rendered for defendant. The plaintiff sued out a writ of error. The defendant claims that the amendments passed by the Legislature at its session in 1885 are unconstitutional and void, as being an infraction of section 20 of article 4 of the Constitution, which provides: “No law shall embrace more than one object, which shall be expressed in its title.” The title of Act No. 214 is as follows: “An act to amend sections 1442, 1443, 1445, and 1446 of Howell’s Annotated Statutes, being sections 1, 2, 4, and 5 of Act No. 244 of the Session Laws of 1879, entitled: ‘An act for the collection of damages sustained by reason of defective public highways, streets, bridges, cross-walks, and culverts,’ so as to make said act cover damages sustained by reason of defective sidewalks.” The only section of Act No. 244 which is not amended by Act No. 214 is section 3, which is not important to be noticed in this discussion. The amending act comprises seven sections, two of which, sections 6 and 7, are entirely new. The objection to the amending act is that sections 6 and 7 are not •covered by the title, and that they are so necessarily connected with what precedes, and so essentially a part of its ■scope and purpose, that if they fall the whole amended act must fall with them, which would leave the law to stand as it was before the attempted amendment. The first three sections are re-enactments of the old law, with the addition of the word “sidewalks,” thus making it the duty of municipal corporations to keep its sidewalks in reasonable repair, and reasonably safe and fit for. public travel, and creating a liability in favor of a person injured by such neglect of duty. Section 6 provides that “ no township, village, or city in this State shall be liable/5 etc., except “under and according to the provisions of this act,” and abrogates the “ common-law liability.” Section 7 limits the amount recoverable to $300 against a municipality of a population of 500 or less; $600 where the population is over 500 and less than 1,000; $1,000 where the population is over 1,000 and less than 2,000; and $1,800 where the population is over 2,000. The population is to be ascertained from the census taken next preceding the commencement of suit. This section also contains a proviso that the owner of the lot abutting the sidewalk on which the injury occurred for which judgment was recovered, and whose duty it is to build and maintain such sidewalk, shall not be liable to the city, village, or township, for or on account of such judgment. There is nothing said in the title of the act about adding any new sections, and nothing expressed therein relative to abrogating the common-law liability of townships, villages, and cities for or on account of bodily injuries sustained by any person, by reason of neglect to keep in repair highways, cross-walks, etc. So far as section 6 is concerned, it abrogated what this Court had previously held did not exist in this State. But the federal courts took a different view, and held that such, liability does exist at common law, and suitors in those courts were allowed to maintain actions therefor. Thus the administration of the law was not uniform. Redress could not be had if the injured party was a citizen of the State; but if he happened to be a citizen of another state, or an alien, he could obtain redress in a federal court. The object of this section undoubtedly was to abolish the liability at common law of a municipality arising from neglect of duty to keep its. streets and highways in repair, and to provide a statutory remedy in the act by which all injured persons should be placed upon the same footing. But this object is not embraced in the title to -the act. It is different and independent of the object stated in the title. The one grants a remedy; the other takes away, if valid, a remedy which existed in favor of certain classes of persons. The seventh section is not embraced in the title of the amended act. That merely amended certain sections of the original act so as to include therein damages sustained by reason of defective sidewalks. This section limits the amount of damages to be recovered, and graduates the recovery, not in proportion to the injury suffered, but to the population which the municipality had at the last preceding census. This section applies, not only to the added subject for which recovery may be had, but to damages allowed to be recovered under the original act. This cannot be done without some indication of such object being expressed in the title. The two sections which were added, being for a different object than that expressed in the title of the act, are void, as conflicting with that clause of the Constitution above cited. It appears to us quite clear that the amendments made to the original sections so as to include sidewalks were intimately connected with the two sections added, and especially with section 7, and are so dependent upon each other in the scheme to be accomplished, — that is, to create a limited liability against townships, etc., for injuries arising from defective sidewalks, — as to warrant a belief that the Legislature intended them as a whole, and would not have created the liability without the limitation expressed in section 7; and we think, for this reason, the whole amendments to the act must fall. Attorney General v. Common Council of Detroit, 29 Mich. 108; Warren v. Charlestown, 2 Gray, 99; State v. Commissioners of Perry Co., 5 Ohio Sb. 507; Slauson v. Racine, 13 Wis. 398; Risser v. Hoyt, 53 Mich. 185, 194; Cooley, Const. Lim. 179. The judgment must be affirmed. The other Justices concurred.	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Morse, J. The complainant filed his bill in the circuit court for the county of Marquette, in chancery, to foreclose or enforce a lien upon certain land of the defendant by virtue of a deed from the Auditor General for the taxes of 1881, the land being sold for taxes, and the conveyance executed, under the provisions of the tax law of 1882. The bill alleges that on the fifth day of May, 1884, he purchased from the State of Michigan a certain description of land; that the deed was executed by the Auditor General to him by virtue of a sale, under the direction of said officer, and under section 63 of Act No. 9 of the Laws of 1882, for the unpaid taxes duly assessed upon said land for the year 1881; that the consideration of the deed paid bv him was $14.70, the amount of the tax so assessed and levied. Before 1881, the defendant, Busch, or the parties from whom he obtained his title, purchased said land from the United States, and obtained a patent therefor. Said defendant was the owner of the premises at the time the tax was levied, and when the sale took place at which complainant purchased. Complainant’s deed, thus obtained, is void and ineffectual to convey title, because a sale under said section 63 of said Act No. 9 of the Laws of 1882 for the taxes for the year 1881 has been so declared in this Court in the case of Thomas v. Collins, 58 Mich. 64. But the taxes were legally assessed and levied, and, though the deed is void as a conveyance, yet by virtue of section 1167 of Howell’s Statutes said tax remains a lawful lien upon the land, and the complainant, having paid the State the amount of the tax, and received the deed, has become the assignee of said lien, and entitled to enforce the same as against the said land, together with the lawful charges in the assessing and collecting of said tax, and with interest at the rate of 25 per cent, from the date of such sale. Complainant further alleges that, by virtue of Act No. 153 of the Laws of 1885, said lien of the State upon said land was transferred to him, and by virtue of said act he is ■entitled to a lien upon the said land for the amount of said tax, and- interest upon the same, so paid to the State. Complainant further states that said sale of the land, so made to him, was by virtue of a decree of the circuit court in chancery, in pursuance of the provisions of the tax law of 1882; and he waives any claim of title in fee to such land Tinder his said deed of May 5,1884, except as he may acquire by purchase under any sale made of such land under the decree of the court in this action, or in an action to enforce said lien. He therefore prays that he may be decreed to be entitled to a lien upon the land for the taxes and legal expenses at the time of obtaining said deed, together with interest at 25 per cent, from May 5, 1884; and that the defendant be decreed to pay him such amount, together with his costs; and that, in default of such payment, the land may be sold to satisfy such amount and costs; and for such other and further relief as equity may require in the premises. The defendant interposed a general demurrer. The cause was heard upon bill and demurrer, and the court below rendered a decree for complainant in accordance with the prayer of the bill, from which decree.the defendant appeals to this Court. We do not think that this bill can be maintained. We cannot extend the statute beyond its terms. Granting the premises, that complainant’s tax deed is void by reason of the defect pointed out in Thomas v. Collins, and that, the taxes being lawfully assessed and levied, he has acquired a lien, as claimed, upon the premises, it does not necessarily follow that he is entitled to the relief asked. The remedy, as prescribed by the statute cited in his bill (How. Stat. § 1167), does not authorize the prosecution or litigation of his claim -or lien, acquired under and by virtue of the .statute, until the rendition of a judginmt against him for the recovery of the land. This was distinctly held in Weimer v. Porter, 42 Mich. 569, and Ellsworth v. Freeman, 43 Id. 488. The counsel for complainant contends that if it appears by any other means, conclusively, that the tax deed is not good, it is not necessary to institute ejectment in order to be entitled to file a bill to enforce the lien, as that would be doing a useless thing, which courts never require. But it is to be remembered that the lien of the complainant, if he has any, is purely a statutory lien, and the same section which creates the lien also fixes the remedy, and directs when it shall be enforced. The courts have no power to enlarge this statute. We do not deem it necessary to determine whether or not the complainant has a lien upon the land, or to decide whether the remedy sought to be enforced, under section 1167, was destroyed by the repeal of the tax law of 1869 by Act No. 11 of the Laws of 1882. The complainant contends that, under section 118 of Act 153 of the Laws of 1885, he can maintain his bill, as that section provides that the lien of the State on the land shall, by any tax deed issued by virtue of the decree of any circuit court in chancery in pursuance of the tax law of 1882, be transferred to the grantee therein, and that any person claiming title under or by such tax deed may, at his option,, within two years after the act takes effect, treat the title so-acquired by him as such lien on said land for the amount of the consideration expressed in such deed, and enforce the-same by a suit in chancery, upon his stating in his bill, among other things, that he waives any claim of title in fee to such land. He claims the bill conforms with the requirements of this statute. We must hold, in accordance with former decisions of this Court, that the provisions of said section 118, relied upon by •complainant, are not fairly within the title of the act of 1885. 'The title reads as follows: “An act to provide for the assessment of property, and the levy and collection of taxes thereon. ” The tax law of 1869, with a precisely similar title, was held in Clark v. Hall, 19 Mich. 356, and Smith v. Auditor General, 20 Id. 398, to be entirely prospective, and that such title ■indicated that it was passed to regulate the assessment, levy, .and collection of taxes for the future; and in Thomas v. Collins, 58 Mich. 64, the act of 1882, with precisely the same title, was held also to be prospective, and that a sale under said act, of lands for the taxes of 1881, was not authorized. Section 70 of that act, which provided for the sale of lands assessed or returned as delinquent for non-payment of taxes thereon, was in effect declared invalid. It was held that the sale therein provided was not within the legitimate province of the provision of the act as contained in its title. The enforcement of a lien upon lands for taxes assessed previous to the passage of the act, by a sale of the lands as in case of a mortgage, and giving such a lien a preference over all other liens except liens held by the State, does not come naturally or legitimately, under the head of the assessment, levying, and collection of taxes in the future. Therefore such provision is unconstitutional, being in violation of section 20, art. 4, of the Constitution. The decree of the court below is therefore reversed, and a decree will be entered in this Court sustaining the demurrer of the defendant, and dismissing complainant’s bill, with the costs of both courts against him. The other Justices concurred. See Goodman v. Nester, post, 662.	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Chajiplin, J. On the thirtieth day of October, 1882, as "Phillip A. Mynning was crossing a spur track of the defend ■ant, he was run over by a train of cars and killed. The accident occurred while he was walking along one of the public streets in the city of Big Rapids, between six and seven o’clock in the evening. At this time it was quite dark. A rain-storm was approaching, with considerable wind from the south-west. The deceased was walking rapidly east, and the train was backing from the north. This action is brought by the administrator of deceased to recover damages for the wrongful and negligent killing of Phillip A. Mynning. After averring the duty of the railroad company in the running and management of its trains at the point in question, the negligence claimed is set out in the ■following language, namely: “ Running said locomotive engine, with a train of freight ■cars attacheds, backward, and at a high and dangerous rate of speed, in the dark, without giving any signals by sounding the whistle or ringing the bell, and without having any light at or upon the rear end of said train of freight cars attached to said locomotive engine, or any head-light upon said engine, to warn people who were crossing, or about to cross, said spur or side track of said defendant, running over and crossing said Baldwin street, of the approach of said locomotive engine, with a train of freight cars attached, and so that the employés of said defendant upon said locomotive engine, and upon said train of freight cars attached, who were operating ■and managing said locomotive engine, and the said train of freight cars attached, could see persons who were crossing, or about to cross, the said spur or side track of said defendant where the same crosses said Baldwin street, by reason whereof the said Phillip A. Mynning, who was lawfully walking along said Baldwin street at the point where said spur or aide track crosses the same, and while he was in the exercise of due and proper care, and without fault or negligence on his part, was struck and run over by said freight cars attached to said locomotive engine, so willfully, recklessly, wrongfully, and negligently run and operated by said defendant, as aforesaid, whereby, and by reason whereof, the said Phillip A. Mynning was then and there, to wit, at the city of Big Rapids, in said county of Mecosta, on the day and year aforesaid, struck by said freight cars attached to said locomotive engine, ■and instantly killed.” The testimony introduced upon the trial respecting the defendant’s negligence was conflicting, and consequently, upon that point, was a proper question for the jury to determine. The main question in the case, however, turns upon whether the deceased was himself in the exercise of ordinary care at the time of the accident, and whether he did not, by his own careless or negligent conduct, or by the neglect to exercise due care, contribute to the injury complained of. After the testimony on behalf of the plaintiff was closed^ the defendant orally demurred to the evidence, and moved the court to direct the jury to find a verdict for the defendant, on the ground that the plaintiff’s evidence established affirmatively and conclusively that plaintiff’s intestate was-wanting in due care, and that his own negligence contributed to his death. The court declined to hear argument, and overruled the motion. The testimony subsequently introduced did not in any respect vary the probative force of that given upon this point when plaintiff closed his case. Defendant’s counsel again requested the court to instruct the jury that,, under the evidence in the case, the injured or deceased person was guilty of contributory negligence, and their verdict must be for the defendant. The testimony is all returned in the bill of exceptions, and it is proper that this question should be considered first; for, if the point is well taken, it virtually disposes of the case,, and the other errors assigned become unimportant. Counsel for plaintiff claims that it does not lie within the province of the trial judge to take the case from the jury, but that it is the privilege and right of the jury to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case upon trial. As a general proposition, this is true; but, when there is a total defect of evidence as to any essential fact, the case should be withdrawn from the consideration of the jury. Conely v. McDonald, 40 Mich. 158. The motion made at the- close of the plaintiff’s proofs raised precisely this question: Whether, taking all the testimony introduced by plaintiff as true, and all legitimate inferences to be drawn therefrom, there was any evidence tending to prove that the deceased was in the exercise of ordinary care at the time of the accident; the defendant claiming that it affirmatively appeared from such testimony that the negligence of the deceased contributed to the accident which resulted in his death. This raised a question of law, which it was the duty of the trial judge to decide. If, at the time the plaintiff closed his proofs, there was no evidence upon a material point in issue upon which the plaintiff had the burden of proof, or if it affirmatively appeared by his own showing that he had no cause of action upon the undisputed testimony introduced by him, the defendant was entitled, at that stage of the case, to a direction from the court to the jury to find a verdict for the defendant. Equally so, under the same circumstances, was defendant entitled to such direction after all the evidence was introduced. It is the duty of the judge when asked to do so, before submitting the case to the jury, as a preliminary question of law, to decide whether there is any evidence on which the jury could properly find a verdict for the party on whom the onus of proof lies; and, if there is not, he ought to withdraw it from the jury. Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584. The ruling of the court denying the motion, and refusing the request to charge, renders it necessary to examine fully the testimony introduced upon the trial in order to determine whether error in law was committed by such ruling. The Muskegon river runs nearly south through the city of Big Rapids. Baldwin street runs east and west, and is connected on either side of the Muskegon river by a bridge. A mill-race leading from the river, north of Baldwin street, crosses the street about 150 feet east from the bridge. The spur track of the defendant extends, from a point south, to the mills along the race, and to the river above the mills, and at the point where it crosses Baldwin street is between the race and river, — about 55 feet from the race, and 90 feet from the river. On the night of the accident there was a lamp at the east end of the bridge over Muskegon river, which was lighted. In approaching the railroad track from the west, there was nothing to obstruct the view north of Baldwin street for a distance of about 400 feet. The train had been made up north of Baldwin street, and consisted of box cars and flat •cars laden with lumber, — 11 in all. The deceased, at the time of the accident, resided about one mile east of the city, but had lived in the city, and was familiar with the railroad crossing at Baldwin street. Three witnesses were introduced by plaintiff who saw the •accident.' Two of these, Mr. Wakeman and Mr. Trafford, were walking west on Baldwin street. When they were upon the bridge which spans the mill-race, and about 55 feet from the crossing, they saw the train approaching from the north. They testify that a person with a lighted lantern was upon the rear car, swinging the light as if signaling. The train was in rapid motion, and neither heard the sound of bell or whistle. They both saw Mr. Mynning approaching the crossing from the west. He was then about 20 or 30 feet from the crossing, walking rapidly, bent a little forward, as was natural to him, with his head down. He did not pause, or look to the left or right, but kept on, and stepped upon the crossing, and was struck by the rear car, and taken from their sight. The opportunity of these witnesses for observation was aided by the lamp which shone from the end of the bridge; the deceased being between them and the light. They were looking at him from the time they first saw him until he was struck by the train. The other witness was John McLaughlin. He was walking east on Baldwin street, and saw Mynning about 75 feet ahead of him, as he was crossing the bridge. As he came off of the bridge, Mynning was 25 to 30 feet from him, and he saw Mynning walk right in front of the train, and saw it strike him. He saw the train before it struck Mynning, and stopped. He testifies that Mynning did not stop on approaching the crossing; that he was looking at him, and did not see him look either way, but he walked pretty fast. Thomas P. Mortenson did not see the accident, but was approaching the crossing on Baldwin street, going east, when the train passed. He had a horse and buggy. When he came to the end of the bridge, his horse stopped, and he looked up, and saw the train crossing Baldwin street. He saw a light upon the train, but thinks it was upon top of the middle car in the train. He did not see the deceased. William Poison met Mynning between the bridge and the crossing. He says he spoke to Mynning, who was walking rapidly east; that he (witness) walked on west; and, when lie got close to the bridge, he heard a noise, and looked around, and saw the train passing Baldwin street. He heard the puffing of the engine, and saw some kind of show-lights from the smoke-stack, and he gave it as his opinion that,-if he had been within five or ten feet from the railroad track, he could not have seen the train coming, or the light either, on account of the darkness, although he did not think it was too dark to have seen the light. On cross-examination this witness testified that, when he met Mynning, he was close to the railroad track, and about 40 feet from the bridge; that he (witness) went on towards the bridge, and was within 10 or 15 feet of it when he heard the train. The testimony tended to show that Mynning was possessed of all his faculties; and there was no testimony given or claim made that he was not in full possession of the faculties of seeing and hearing. Neither of the above-named witnesses heard any sound óf a whistle or the bell, and all concurred in the opinion that the train was moving across Baldwin street at a high rate of speed. I have given above substantially all the testimony tending to prove that the deceased was in the exercise of ordinary care. It shows conclusively, and without contradiction,— 1. That the deceased was a man possessed of the ordinary faculties. 2. That he was acquainted with the railroad crossing at Baldwin street. 3. That on a dark and stormy evening he walked at a rapid pace towards and upon the railroad track crossing Baldwin street, without checking his speed, or stopping, or looking, or listening, or taking any precaution whatever to ascertain whether a train was about to pass. 4. That others who were about to cross, whose opportunities for observation were no better than those of deceased, saw and heard the train. 5. That he stepped upon the crossing, and was struck by the train, which ran over and killed him. .The rule with reference to contributory negligence was laid down by this Court in the case of Teipel v. Hilsendegen, 44 Mich. 462, where it was said that— “ The absence of contributory negligence is not necessary to be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just .opinion.” The jury having passed upon the conflicting testimony with reference to the defendant’s negligence in not giving warning by the sounding of the whistle or the ringing of the bell, and of the neglect, as alleged, to have a light unon-the rear end of the train, by their verdict in plaintiff’s favor, the negligence'oFthe defendant in those respects must be considered as established, and we have the case of the deceased approaching the railroad crossing upon a dark and stormy night, without any other warning of danger than that afforded by the track itself, the existence of which he knew, and that it was used almost daily in passing engines and cars over it. Had he taken the ordinary precaution upon approaching a railroad crossing, of looking or listening, in order to ascertain if the train was approaching, before stepping upon the track, it is evident from the testimony of the witnesses who witnessed the catastrophe that he would have seen or heard it. The testimony precludes the fact, or any inference to be drawn from the facts, that the deceased exercised any or the remotest degree of caution on that occasion. He passed along hurriedly, as if there was no railroad crossing there. From the testimony it is plain to me that the case is susceptible of but one just opinion upon his want of ordinary care. Ordinary care would have required him to at least look up and down the track before crossing; and, if the night was so dark as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger. As was said when this case was here before (59 Mich. 260): “ The track itself is a warning of danger to those who go upon it, and persons about to cross a railroad track are bound to recognize the danger, and make use of the sense of hearing as well as of sight; and,'if either cannot be rendered available, the obligation to use the other is the stronger to ascertain, before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly or carelessly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence.” In the former trial it was not clear that the party did not look and listen, and we thought that, under the testimony there given, the case was properly submitted to the jury upon that point. Hpon this trial it clearly appears that he did not look, nor is there any evidence which would justify the inference that he listened, for the approach of the train. In the case of McWilliams v. Detroit Central Mills Co., 31 Mich. 274, it was said that a passenger along the sidewalk of a public street has a right to expect some warning before any sudden backing of cars after standing still, and there should be very plain proof of negligence to bind him under such circumstances. But in that case the track was a private one,, and it was pointed out that it stood on a different footing than an ordinary track. In that case the plaintiff’s intestate-was struck with the cars, and killed, while crossing a public-street, by the cars being backed up suddenly after standing still. No one saw the accident, and it was not known for more than an hour after it happened. The presumption of law is that the person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject. But where there-is affirmative, direct, and creditable testimony that the person-injured went upon the track without stopping to look and' listen, the presumption is rebutted and displaced. Pennsylvania R. R. Co. v. Weber, 76 Penn. St. 168; Reading & C. R. R. Co. v. Ritchie, 102 Id. 425; Powell v. Missouri Pac. Ry. Co., 8 Amer. & Eng. R. R. Cas. 467; Haas v. Grand Rapids & I. R. R. Co., 47 Mich. 401. Such is the testimony in this case, and there is none to the-contrary. The showing of contributory negligence is much-stronger than in Pzolla v. Mich. Cent. R. R. Co., 54 Mich. 273, and we held in that case that the plaintiff was not entitled to recover because of such contributory negligence,, and we affirmed the ruling of the court below in taking the case from the jury. See, also, Potter v. Flint & P. M. R. R. Co., 62 Mich. 22. Our conclusion is, from the whole testimony bearing upon, the question of contributory negligence, that it affirmatively appears that the negligenqe of the deceased directly contributed to the accident which resulted in his death, and for that reason the circuit judge should have directed a verdict for the defendant. We are referred to the case of Beisiegel v. N. Y. Cent. R. R. Co., 34 N. Y. 622, as holding that a foot passenger on a public crossing has a right to expect some warning upon approaching the railroad track. In that case the plaintiff wasnonsuited in the trial court on the ground of contributory negligence. There was evidence which tended to show that the engine was running at a high rate of speed across a thoroughfare in a city without ringing the bell or sounding the whistle, and that plaintiff both looked and listened before attempting to cross. The nonsuit was set aside on the ground of the defendant’s negligence, and that plaintiff was himself free from negligence. Another trial was had, and the case came before the court of appeals again, and is reported in 40 N. Y. 9, when the court was divided upon the question as to plaintiff’s contributory negligence. James, J., said: “The plaintiff knew that trains were often passing at this-crossing. It was his duty, therefore, before starting to cross-the track from his place of concealment, to have ascertained whether an approaching train or engine was coming, and' within 15 feet of the place where he stood. One step in advance,, which would have been perfectly safe, and a look east, would have shown him the danger; and his omission of this .easy,, simple precaution, demanded of all persons before entering upon a railroad crossing, was gross negligence contributing to the injury, and bars all right of action against the defendant, even though its agents or servants were also negligent.” But in Grippen v. New York Cent. R. R. Co., 40 N. Y. 34, it was held that if the injured party, by looking up the track in the direction of the approaching train, could have seen, it in time to avoid the injury, his omission to do so was negligence, and the refusal of the court thus to instruct the jury was error. This case, in some of its facts, was similar to the' case at bar. The accident happened upon a stormy, snowing; night. The defendant’s servants were engaged in depositing- cars to be unloaded, and in picking up empty freight cars, and were moving a train of six cars backwards along the railroad track, called the South Branch. The plaintiff was familiar with the crossing, and drove a horse and cutter across the railroad track without stopping to look or listen. Woodruff, J., said: “These same considerations, applicable to the conduct of the railroad company or its agents, are alike applicable to the conduct of persons who are liable to be injured. All the circumstances which render it more than usually difficult for them to see or avoid a train are so many reasons why they should be more vigilant and cautious on their part, and, instead of forming an excuse for omitting to use greater caution, impose it upon them with greater strictness.” And see, upon this point, Harty v. Central R. R. Co., 42 N. Y. 468; Gorton v. Erie Ry. Co., 45 Id. 660; McGrath v.New York Cent. & H. R. R. R. Co., 59 Id. 468. In the case last above cited, Mr. Justice Andrews said: “ In respect to a person traveling in a highway which is crossed by a railway, it has been settled, by a series of adjudications in this state, that he is bound, on approaching a crossing, to look and listen, if by so doing he can discover the proximity of a moving train, and that the omission to do so is an omission of ordinary care, which will prevent his recovering for an injury which might have been avoided if he had used his faculties of sight and hearing. ” And, again: “His duty to keep his faculties alert, and look and listen, does not at all depend upon the fact whether the railroad company does or does not perform its duty in giving the statutory signals.” The decisions in New York are in accord with those in this State, and is the established doctrine of all courts where the principles of comparative negligence do not obtain. The judgment must be reversed, and a new trial ordered. The other Justices concurred.	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Morse, J. This is an action of ejectment. The circuit judge found the facts substantially as follows: February 3, 1873, the plaintiff executed a mortgage to defendant Platt for $340 upon lots Nos. 138, 139, and 140, in the village of Berrien Springs. He was then living on lot No. 139, occupying it with his family, consisting of several children, as a homestead. Plaintiff was married in 1849. His wife was living at the date of the mortgage, but did not sign it. She was not at that time divorced, but the plaintiff obtained a divorce from her January 28, 1879. The mortgage was foreclosed by advertisement January 31, 1876, about three years before the divorce. At the foreclosure sale, the defendant Platt bid off the premises, and a sheriff’s deed of the same was made to him February 17, 1877, and afterwards he ousted the plaintiff from possession.- When the mortgage was executed, plaintiff’s wife did not reside with him on the premises, but he and his children occupied lot 139 as a homestead, and had so occupied it for a number of years. It was his homestead when his wife left him, and continued to be his homestead until he was ousted from possession. The court also found as a conclusion of law that plaintiff was not entitled to recover lots 138 and 140, but that the mortgage was void as to lot 139, which lot he was entitled to recover. The main question involved upon the argument was whether the desertion of the husband by the wife operated to bar the constitutional provision which declares a mortgage given upon a homestead without the signature of the wife to be absolutely void. But there are two fatal objections to the judgment, which render it unnecessary to discuss the homestead question. The judgment is entered against both defendants. All the testimony taken is returned in the record. There is no finding by the court, and no evidence to show, that the defendant George H. Martin was an occupant of the premises, or claimed any title thereto in any way. There is absolutely no testimony connecting him with the case. Nor is there any finding, or any evidence, showing the value of lot 139. It also appears that the defendant Platt has died since the commencement of suit. The judgment must therefore be reversed, and a judgment entered here for the defendant Martin.. The record will be remanded for further proceedings in the court below under the statute. Costs of both courts will be recovered against the plaintiff by the defendant Martin. The other Justices concurred. See Stanton v. Hitchcock, ante, 316.	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Campbell, O. J. This case was in this Court, and decided at the October term, 1883 (52 Mich. 174), upon a bill to establish the rights of the various parties under a trust including a lumbering estate managed in the name of the Oscoda Salt & Lumber Company. The controversy brought in for decision the conduct of the trustees, and of Winchester, the secured creditor, and was also intended to get relief for the alleged misconduct of Wasey and Winchester, and their associates or subordinates. A decree was made by the court below, substantially sustained by this Court, leaving the trust in the same hands, and ordering measures to close it up. In pursuance of our decree the parties proceeded to an accounting, and upon most of the balances there is no complaint made. But various charges for losses were allowed against Winchester, and some also against Wasey, and certain of their respective claims were rejected. The cause is now before us on appeal, to obtain the disallowance of the sums alleged to be wrongly charged, and the allowance of what is claimed to have been wrongly rejected. A preliminary series o£ objections is made, on behalf of Winchester, that there are no specific charges in the bill, and no provisions in the decree, which opened the door to an inquiry into the losses and other items charged against Winchester,who, it is said, is entitled, on the record, to his whole debt of $275,-000, less actual payments made in reduction of it, without regard to the,cross or counter claims that are set up as arising from his legal misconduct; and it is also insisted that Winchester is not liable for conduct of others not actually engaged in or authorized by himself. Wasey’s objections are chiefly based on his discretionary powers as trustee, which he insists protect him where there was no actual fraud. In our opinion, there is not much in this record, so far as the disputed items are concerned, which has not already been settled by our former decision. It was plainly Baid there that, in an action like this, to call persons to an account for the maladministration of a trust, it was not reasonable to require a complainant to set out in his bill the misdoings which he could not be expected to fully understand until he had obtained disclosures. It was there said: “It is not generally presumable that the beneficiaries have such information from independent sources. When, therefore, a bill is filed to call trustees to an account, any testimony throwing light on their management bears directly on the performance of this duty, and may be considered in taking the accounts and in determining the view to be taken of the conduct of the trustees.” It was also our opinion that, after Winchester had attempted to repudiate complainant’s rights, he and Wasey had been so connected in their dealings that he was individually responsible for their effect on the interests of the trust. Upon both these points we see no reason to change our former views. There has been no testimony taken which Winchester has not had the means of meeting as fully as if it had been foreshadowed in the pleadings. And the approval and acquiescence of Winchester in Wasey’s view of his powers, and the almost complete actual approval of his specific acts, appear more fully now than before. We shall not depart from our previous conclusions; and while there is, in some instances, a strong argument made to show that they do not cover some portions of the present dispute, we do not propose to change any results that depend upon them. Before considering the separate items, some reference is proper to certain considerations" of natural equity which were urged upon our attention. We do not doubt, and are entirely convinced, that in the outset of these transactions Mr. Winchester had gone to further lengths than wisdom would warrant in giving accommodations to complainant and his associate, who had expanded their business under this encouragement until it became unmanageable, and would have swept away all their valuable property had he not compromised and reduced his demand, and agreed upon this trust arrangement to work it out. Counsel are justified in claiming this was very liberal treatment. But it is quite manifest that the course which led to it was a very dangerous, one for all parties; and, while it would not sound well for complainant to find fault with Winchester for humoring his schemes, the terms of the trust are inconsistent with the continuance of any such wild course in the future. And, whatever may have been complainant’s moral debt of gratitude for the past, it in no way relieved Winchester and the trustees from doing business on business principles. Most of the present difficulty has been caused by a course of dealings which, as was pointed out in our former decision, departed radically from the purposes of the trust, and the testimony on the accounting indicates that nothing but a remarkable course of prosperity in the lumber interests has made it possible to work out a favorable issue from dealings that depended on too many contingencies to be safe in their nature. Winchester’s death or failure would, at more than one time, have been disastrous to the trust in the shape in which these dealings put it. Trustees have no right to assume such risks; and had not Wasey dealt with the funds on the assumption that Winchester was the substantial beneficiary, and with his co-operation, the management might have been different. The result, as now shown, is favorable, and the residuary property is valuable, and no dishonest appropriation has appeared on the part of any one. How far this result would have followed from more timid or cautious management we cannot do more than conjecture; but it does not appear very plainly that the profits have exceeded what would have been realized from a similar property in ordinary hands. The chief items charged to Mr. Winchester, and objected to, arose out of the transactions in Cleveland, known as the Monroe transactions. It appears that in 1880, about the time when complainant was practically shut out from the business, a written contract was made between Monroe Brothers & Co. and Mr. Wasey, acting in the name of the Oscoda Salt & Lumber Company, which was the business name of the trust, whereby the latter agreed to furnish Monroe Brothers & Co. such lumber as they should need, upon these conditions, in substance: The title to all lumber then held by Monroe Brothers & Co., and of all future shipments, was to be in the name of the Oscoda Company till fully paid for, and insured by the Monroes, to be invoiced to them at agreed prices, and provided for by notes or acceptances; the Monroes to bear all expenses and receive all profits, keeping their capital, estimated at $25,000,. in Cleveland, with the right in the Oscoda Company to inspect the books, and wind up the business in case of diminished capital or the death of W. R. Monroe. In March, 1882, a planing-mill was put into the same conditions of title. This contract contemplated power in the Monroes to sell the lumber without restriction. It contained on its face no promise or purpose of doing any more for the Monroes than selling them lumber on time paper. It was, as we held before, an arrangement which, without any further privileges, had the object of putting a practically unlimited amount of the trust property in another jurisdiction and at serious risk. But it now appears more fully than it did then that this Cleveland business was so conducted that paper aggregating several hundred thousand dollars was discounted by or through Winchester, on the credit of the Oscoda Company, for the benefit of this business, a considerable portion of which was really accommodation paper, having the effect of loans or advances by the Oscoda Company, outside of the discounting or negotiation of paper given for invoices; and it is impossible from this record to completely disentangle the various items, or get at their origin. Out of this confusion of accounts and interests it appeared that in the spring of 1883 a balance stood against the Monroes of more than $190,000, which was practically unsecured except by the title nominally held by the Oscoda Company, in accordance with the contract of 1880. It is even doubtful whether that balance actually represented lumber the invoices of which had been met by notes or drafts remaining unpaid. So far as it did not, there was no security beyond personal liability. It is not necessary to follow out this matter into its details, and it would not be practicable to do so on the testimony. It is probable, and we are inclined to think it is certain, that there was not lumber at Cleveland to any such amount as would cover this balance. All the property there, including the lumber, did not exceed it much, if at all. In February, 1883, a freshet swept away a large quantity of lumber from the yard at Cleveland, and damaged most which remained. Considerable money was spent by Wasey to gather up lumber which was swept off, and to purchase the claims of neighboring dealers in lots which had become mixed and not distinguishable. Thereupon an arrangement was made between Monroe Brothers & Co. and Wasey, with Winchester’s approval then or subsequently, and the testimony seems to indicate that the plan has been contemplated earlier, whereby a corporation having the same name of Monroe Brothers & Co. was got up, and all the property of the same firm, which had already been conveyed, February 7, 1883, to the Oscoda Gompany) was put in this corporation, whose object was to continue the same business, as well as to dispose of the damaged lumber, and clear off the Oscoda debt. By the transfer of February 7, Wasey agreed that Monroe Brothers & Co. should be released from any personal liability on the Oscoda debt beyond what could be realized out of the assigned property. The Oscoda Company, in its ultimate receipts applicable on its claims against Monroe Brothers & Co., failed to receive about $31,000, and between $4,000 and $5,000 interest, which should have been paid on account of that concern. The chief reason given why Winchester should not pay this is that the Cleveland business was carried on in pursuance of a plan approved by complainant himself, as it was intimated in our previous decision that, unless this was so, the dealings were in such disregard of the trust conditions as to receive no support from them. We discover nothing in the record which supports any such idea. There is testimony tending to show, in a very general way, that complainant would have been willing to enter into liberal arrangements with Monroe Brothers & Co., but none that any such arrangements were matured, or that he would have been willing to give unlimited, time and credit to a firm who were to have all the profits and run no serious risks. The business done went far beyond anything contemplated by the agreement of October, 1880, and involved money dealings and negotiable paper transactions quite foreign to anything hinted at in that document, even if it had been approved. And, furthermore, Wasey had no authority, without, at least, the intelligent approval of his co-trustees, to close up the debt by the compromise, if it may be so called, of February 7, 1883, and still less to embark the trust interests in a partnership or corporation in which the trustees had no control. Those dealings were really Mr. Winchester’s dealings, in which no one else was recognized as actually interested, and no one else was allowed to meddle. The point made that, by the decree, an election was made to take the Cleveland interests, and that they must be taken as found, is not, in our opinion, applicable. It is by no means clear to us that the upshot of that business was not such profits as would have made up any deficiency; but it is enough to say that pursuing a trust fund in the hands of a misconducting trustee cannot be construed as a waiver of claim for his deficiencies, unless,. possibly, when there are two funds to elect between. But here the allowance is only made for a balance remaining after the trustees have applied all that they received; and the only question is whether, by the agreement of February 7, 1880, such balance was extinguished. An item of $3,474.33, due from Monroe Brothers & Co. to the Oscoda' Company, is claimed to have been assigned to Winchester .in December, 1883. This was during the new corporate arrangement, in which Winchester had a chief part. We think the testimony shows that this assignment was made as claimed, and was a proper charge. There is also a claim arising out of a shipment of certain lumber by the Agnes, which Winchester claims was not authorized or accepted, but which Wasey swears was authorized. We do not feel disposed to disturb this allowance. There is also a dispute about 100 shares of boom stock, which was charged to Winchester in December, 1884, and on which he is charged with a dividend of $1,725. These shares are part of a larger amount issued partly in consideration of certain booming rights granted to the boom company by the Oscoda Company. They were sent to Winchester, as the trustees claim, to hold merely as security. He claims that, under the trust, all proceeds of real estate were to be turned out to him, and that this stock was on that footing. But it appears that up to December, 1884, the Oscoda Company received and applied all the dividends as their own property, and that Winchester never claimed them; and even in 1884 it rather sec-ms that it was the spontaneous action of Mr. Gowanlock, the secretary of the boom company, who sent the dividend, and not any demand from Winchester that occasioned it. While the release of booming rights might possibly, under some circumstances, have been treated by the parties as a sale of real estate on which Winchester was entitled to the proceeds, the fact that it was practically treated otherwise ought to leave the matter where they placed it. It was properly relegated to the trust fund. The overpayment to Wasey, beyond his authorized salary, is covered by our former decision, and was properly set down against Winchester. We also think that the charges for overpayment of E. F. Wasey, M. E. Gay, and E. K. Gowanlock are properly made. In the cases of Gay and Gowanlock, they had regular salaries which were understood and approved. The overpayments •were not made by any concurrence of the trustees as properly due them for wages, and Mr. Wasey had no right to benefit them in an indirect and practically concealed way. They acted — Gowanlock especially — in disregard of Henry N. Loud’s rights as trustee, and in the interest of Winchester, under Wasey’s approval. Eben F. Wasey’s allowance appears to be as large as would have been agreed upon; and in his case, as in the other cases, George Wasey could not determine on these outlays without some reference to his colleagues. Winchester’s approval was not enough, unless he was the only beneficiary, which he was assumed to be. The deduction of two per cent, on lumber shipments claimed by Winchester is not, we think, sustainable. That was understood to be the rebate for cash sales. The sales on which it is claimed were time sales,' on which he got the benefit of four months’ interest, which would be a little more or a little less than two per cent., according to the rate of interest. We think Winchester should not have been charged with about §10,000 resulting from a loss on notes held by the Oscoda Company against Davison & House. These had been received with Monroe Brothers & Company’s indorsement, and were renewed without it. The makers failed, and paid, but 40 cents on the dollar. This paper had gone into the hands of the trustees, and they held it. Winchester had. nothing to do with the extensions and consequent losses. ■ An item of $305 for Wasey’s traveling expenses was regarded below as concerning Winchester’s affairs, rather than those of the trust, and we are of that opinion. Winchester’s claim for interest on interest was properly disallowed, as it came within no statutory authority. He also claimed $70,000, or $10,000 a year, for financial assistance rendered the trustees. That assistance consisted chiefly in discounting paper, for which he received the proper discount rates. He receives the stipulated interest on all of his secured debt. Alargo amount of these discounts.were* such as ought not to have been obtained at all, and that whole mode of doing business was foreign to the proper business of the trust, unless confined to business paper. No good reason has been alleged why any compensation should be given him. Except as to the Davison & House matter, we think the decree correct in its items as to Winchester. It is suggested, however, that by this decree Gay’s estate should not have been benefited, even if Loud’s is, because it is claimed Gay acquiesced in most of the irregular doings. But the question here is, how much was due on the trust mortgage, and that is not divisible. We do not think Gay is shown to have been at fault personally in all these matters, and we do not think the division is practicable. Wasey also appeals from so much of the decree as affects him adversely, which is done— 1. By compelling him to refund certain disbursements, and replace certain losses. 2. By refusing him larger compensation. The disbursements of Mr. Wasey in this suit, of b.etween $200 aud $300, were apparently necessary, and, under ail the circumstances, aS he was retained in the trust, we think he was entitled to them. We have had more doubt about the disbursements connected with a suit by Monroe Brothers & Co. against the trustees of the Oscoda Salt & Lumber Co. This suit, how- over, does not appear to be collusive; and, whether Wasey ■could or could not appear for his colleagues, he had to appear for himself, and the contest may affect the trust interests. Without passing upon the sufficiency or effect of the proceedings, we think Wasey was justified in not assuming he ought to let them go by default, and should be protected in his bona fide reasonable expenditures. These should therefore be stricken out of the decree. The sum of $350 paid to Perry Prentiss to settle an adverse claim against the property, as well as a deduction of $95 from an account against Oahoon & Hutchinson, whether wise or unwise, were not beyond the fair judgment of a business man. He is also charged with $3,018.53, as a loss on a sale made to F. Hempy & Co., on the ground that it ought not to have been made. Monroe Brothers & Co. made the sale subject to Wasey’s willingness to make it on Hempy’s paper alone, without their indorsement, as they did not wish to increase their own credit to that firm. Hempy & Co. appear to have been in good credit, and there was no special reason to doubt their soundness. We cannot see why Wasey should be held responsible for what was not apparently an unwise sale. The commissioner undertook to decide that Mr. Wasey’s salary, as fixed and approved by this Court, should only run ■until September, 1885. That was a matter beyond his jurisdiction, and the salary should run until the date of the decree below, when it should cease. It was directed to continue until the further order of the court. As to Mr. Wasey, then, the charges against him should be ■disallowed, and his salary stand as above mentioned. We are not inclined to increase it. While Mr. Wasey has not perverted the trust to his own advantage, and has no doubt acted on an idea that he was doing what was competent, he has, however, honestly departed very widely from his duty to complainant, and from the safe and legal methods of dealing with trusts. A man may lawfully run any risks he chooses with his own business, but a trustee has no right to-use the trust to accommodate other parties, or to enter upon an extended course of bill discounting and indorsing with customers. When we deduct the enhanced value of the trust property due to natural advances in the prices of lands and timber, the increase, though large, is not altogether the-result of good management; and we cannot avoid seeing that any casualty to Wasey or Winchester, with the accounts kept, as they seem to have been, in Wasey’s method of book-keeping, which failed in tracing out the identity of a considerable number of transactions, mast have been disastrous. Mr. Wasey has shown great business capacity and energy, and, had the business been his own, his course would not have-been unusual. We see no reason to differ from the court below in the matter of costs and expenses allowed, or in the saving of questions which may arise out of the Cleveland suit, which we-have no means of fully determining now. As the majority of Winchester’s exceptions are disallowed, and but one of them sustained, we think that, as between him and complainant, each should pay his own costs in this-Court. Wasey will be entitled to a solicitor’s fee here and in the circuit, but no other taxable costs. The decree will be affirmed, except in the particulars-specified. The other Justices concurred.	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Campbell, C. J. This was a suit brought to recover damages suffered by plaintiff in the same transaction that resulted in the death of his father, on behalf of whose estate a recovery was had, affirmed by division of this Oourt in the case of Klanowski v. Grand Trunk Ry. Co., 57 Mich. 525. In the present case some new facts were brought out, and the record presents some questions not fully developed before. Plaintiff recovered damages. It will not be necessary to give many details, as they would be to some extent a repetition of the old decision. We observe that all of the counts in the declaration in this cause lay the injury as done at the crossing of Chene street, and lay the duties in reference to that crossing. The occurrence was not at that crossing, but at one north-east of it, on the Miller road. The briefs do not lay stress upon this variance, which is a very serious one. If the declaration is printed according to the original record, it is plain enough that it cannot maintain the verdict, as an error assigned is that the plaintiff could not recover on the showing. As, in our opinion, a new trial must be granted on other grounds, we make no further allusion to it. The facts, as presented for plaintiff, though controverted in many respects in important details, are, in substance, these: On June 23, 1883, at a little after 9 o’clock in the evening, 'the Grand Trunk Railway train, approaching from the northeast, struck a two-horse wagon in which plaintiff and his father were sitting; the locomotive hitting it in the forepart, and throwing out the persons in it, killing the father and severely injuring the plaintiff. This was on Miller street or road, which at that place was crossed by the railroad at an angle of about 35 degrees. Chene street runs at right angles-with the Miller road, which it crosses about 10 rods northerly from the railroad track, and the Ohene-street railroad crossing is not far from 20 rods distant from the place of the accident. Plaintiff lived on Chene street, according to the map-in evidence, about 30 rods south of the railroad. Some of the testimony, which is vague, puts it further. About 135-rods along the railroad from the place of the accident, northeasterly, is a crossing on the Conet road, known as the Bigelow crossing. This Oonet road is nearly parallel with Chene street, and crosses the Miller road some 80 rods, or thereabouts, southerly from the railroad. That afternoon plaintiff had walked up Chene street to the railroad, and along the track to the Miller crossing, and then followed the Miller road to the Conet road, and along that road, across the railroad, to a place where his father was at work plowing. In the edge of the evening they left the field, in a wagon drawn by two horses, and followed down the Conet toad to the Miller road, and then turned into that, and drove in the direction of the railroad and Chene street. They stopped at Miller’s house, about 30 rods from the railroad, and not far from three-quarters of a mile from the field, along the road they traveled. The father went into Miller’s, and stayed there a good while, the precise time not being fixed. He came out again, and got into the wagon, which the boy was driving, and they started up the road on a walk. The witnesses put the time not far from a quarter past 9. The boy, who was about 14 years old, sat at the right side of his-father, on a board seat laid across the wagon. The train from Port Huron was a few minutes past due, and running about 40 miles an hour, or a little more. The Miller road was rather lower than the highest part of the railroad track, and began to rise when it approached the track, and crossed' the railroad ditch on a plank bridge, which was laid diagonally along the direction of Miller street, and was, as claimed by plaintiff, about eight or nine feet long. Plaintiff says that when he came opposite the telegraph-pole, which is not exactly located, but seems to have been near the intersection of the Miller road with the railroad, he stopped and listened, but heard no noise and saw no light-lie then drove on, and paid no further attention to anything but his driving. The horses were on the track, and apparently just over it, or nearly so, when the locomotive struck the team and wagon. The plaintiff’s claim is that he was careful, and not negligent, and that defendant was negligent in omitting the statutory signals, and in running too fast. Defendant denies-its own fault, and claims that plaintiff was careless himself. No specific neglect is charged, except omitting the statutory, signals. One of the counts puts the speed at 40 miles, and perhaps it charges inferentially that this was too fast. On the trial, and in this Court, considerable stress was-laid on the fault of the railroad in leaving a growth of' bushes on its right of way in and beside the ditch, tending, as claimed, to obscure the view of the road. There was evidence that there was a growth of bushes along that part of the Miller road further than the telegraph pole. There was-a conflict of testimony concerning the bushes near the track, and concerning their height. Plaintiff represented that he saw the dim outline of those bushes between him and the-railroad when he stopped to listen. There was positive testimony on the other side, and some on his side, not consistent with any such difficulty. He testified he did not hear or see anything indicating the approach of the train. There was testimony of witnesses on both sides, of several persons who-were near by, who both heard and saw the train plainly.. "There was positive testimony that all the proper signals were given. There was testimony, on the other hand, of persons who did not hear all the requisite signals. Upon the two main issues, namely, defendant’s carelessness .and plaintiff’s care, the conflict of facts is alleged to have •existed. All of the testimony concerning plaintiff’s own conduct is what he says himself. There is some further testimony intended to supplement it by showing the surroundings. In dealing with the question of plaintiff’s care, less attention was given than should have been to the fact that plaintiff’s father was with him, and more or less familiar with the neighborhood. It is certainly remarkable that neither of them discovered what was seen and heard by so many others. There ean be no doubt that when they reached the bridge crossing, if plaintiff had gone to his horses’ heads, and looked up the track, he could not have failed to see the train, whether he could have heard it or not; and with two in the wagon, if both had their wits' about them, there should have been no difficulty in taking the necessary observations. It is very difficult to distinguish the case from many which appear in the reports where persons approach crossings with stolid indifference, and are injured by trains passing. Except the one stop near the telegraph pole, no attention seems to have been given to the situation. It is not necessary to the ■decision of this case to determine — and in the absence of • some explanations which the jury may have had, and we have not in a sufficiently tangible shape, we cannot fully determine — whether there was not evidence enough of care to go to the jury. It is evident the jury gave plaintiff the benefit ■ of all the doubts. Objection was made to the testimony of Mr. Yoelkner, who represents plaintiff in this suit, and gave an account of some ■ experiments he made under what he supposed to be similar • circumstances. He says, in substance, that he went out with his brother in a wagon like plaintiff’s one night in the following August, and placed himself, without measurements, as he says, about where the boy told them he stopped, and watched for the approach of the train. He put his wagon-on the Miller road, and says “ somewhere near the telegraph pole, and at 9:30 we saw a light.” This was, as he says, before the bushes were cut away. He then gives this account: ^ There was a light; that is, the head-light. It appeared,, and I left my brother standing in the wagon, and I jumped out, and walked to the track to see how long it would take. That was the purpose I went out there to see, — how long it would take to walk to the track; and I walked rather fast, and at the time I got to the track the train was there passing me;, and I took the time, and it took fifty-five seconds; that is, the time I saw the light and I jumped out of the wagon and got to the Chene-street crossing.” He says he considered the train was running 45 miles an hour, the same that it was running the night of the accident. On his cross-examination, he indicates that he proposed to imagine himself as Klanowski driving the horse, and find out the exact time it would take from seeing the light till the-train struck the crossing, and that he ran instead of walking. On the redirect he said it took him the 55 seconds to run 65-feet. . It is not unlikely that this peculiar experiment had weight with the jury. It does not appear just how he measured the time, and it is a remarkable showing of running that-traverses but a little over a foot in a second. At two or three miles an hour, the crossing would have been made safely on this basis. But the testimony was not admissible. It is-never proper to leave to witnesses the determination of matters which can be determined by the jury. With the facts established in regard to the various elements of plaintiff’s-, story, their effect would be within the estimate of any intel ■ligent jury. The facts themselves must be determined beJore any conclusions could be drawn from them. In People v. Morrigan, 29 Mich. 4, an attempt was made .to show by experts whether certain things could or could not be done, involving no science, but ordinary facts, and the testimony was held to have been properly excluded. In the same, case, where the distinct fact was material whether a parcel of a certain size could be taken out of a pocket which had been changed, actual experiments with such a parcel in the pocket, before it was changed, were held proper, as involving a single and determinate fact, showing the capacity •of that particular pocket, which was no longer within reach. The distinction is obvious. In the present case, even if experiments could be of any use, Voelkner took for granted ■distances, locations, and probabilities of speed, none of which had been or could be verified. There were no elements of •certainty in the comparison, which, to be of any value, must have been exact, and beyond dispute or variation. His testimony as to speed on the same night when he experimented was also objected to, and the objection was well taken. While he professed to fix the period of the experiment at 55 seconds, he gave no certain dataos to the distance traversed by the train during that time. There were several objections to the course of the judge in ■his charges, which can be best referred to by comparison. The judge confined his charge to giving or refusing specific requests, except that, in a few instances, he qualified some of •defendant’s requests. The jury had no general cautions or instructions, and the case was one where they needed to be very carefully charged, and where any ambiguity was likely to mislead them. The court charged, in answer to certain requests, that the speed of the train was not negligence, and that, at a common highway crossing, there was no duty to slow down, or reduce .the rate of speed.« He charged that if the hell and whistle were not sounded as required by statute, and. this contributed to the accident, defendant would be liable, in case there was no fault in plaintiff. He also charged that if they were rung ■there could be no recovery. But after this charge, which made the ringing and whistling a sufficient defense, he left it to the jury to determine whether there was any unusual circumstance which made the speed unreasonable. This created a contradiction. It left the jury to find that a full compliance with the statutory conditions, which they had already been told would be a defense, was not a defense. Nothing in the declaration or charge pointed out any exceptional circumstances relied on, and the testimony showed none. In the law, all crossings of highways are classed together, and, if there is any reason why a particular crossing is more dangerous than others, it should be averred and proved. Here there was no averment and no proof of anything that distinguished the Miller crossing from any other. This charge directly empowered the jury to diregard what had already been said about the legal right to run at high speed. There is always room for dwelling before a jury, if it is allowed, on the perilous character of a fast train. But the law allows it, and has imposed what the Legislature consider sufficient guards against danger from it. On the other hand, nothing could be more dangerous than irregular running. Reliability in the movements of trains is necessary for the protection of the numerous lives on the trains themselves, which exceed in number any likely to be found at any crossing. Time lost by slowing at one place must be made up afterwards, and any considerable loss always creates danger. There is less danger from trains, whether fast or slow, which run on time, or nearly so, than from any others. Persons at crossings can always inform themselves sufficiently of the-times and conditions of passing, and accidents do not happen very often where both parties are reasonably vigilant. Every collision endangers lives on the train as well as other lives, and any rule which leaves conductors of trains in any doubt as to their duty would do more harm than good. In other parts of the charge a similar difficulty occurs. The jury were left, on several matters, at liberty to conjecture or find difficulties which were not defined, and which the pleadings do not point out. As already suggested, the-declaration is silent as to any negligence from the leaving of bushes by the track, and, except for plaintiff’s testimony, there is very little, if anything, which indicates that they were of any consequence. They did not prevent Yoelkner from seeing the head-light, and plaintiff only indicates difficulty at the' single point where he stood, which is not clearly identified, and where he was apparently opposite bushes along the Miller road, over which the defendant had no control, and which seemed to have been as high as any others.. The charge does not refer to them very distinctly, as bearing on any question of negligence of defendant, but does not. ignore them, and, except for these, there was nothing that could indicate any difference between this and any other-crossing, thus leaving the jury at liberty to find some" difference, and find some additional duty in defendant as to its trains, from which they might infer negligence beyond what was counted on by the declaration. It is never safe or proper, in cases where sympathy is easily aroused, to leave any door open for finding verdicts on supposed general equities or surmises. It is impossible to suppose, in view of tbe record and tbe verdict, that there was no danger in leaving the jury the wide room for speculation which they had power to take. Leaving them the largest scope for legal discretion, we think they were permitted to go further. There were some other points presented which seem to rest on similar questions, and which ' need not, therefore, be referred to more particularly. The judgment must be reversed, with costs, and a new trial granted. Champlin, J., concurred. See Laughlin v. Street Railway Co., 62 Mich. 221 (head-notes 3,4); Woodbury v. City of Owosso, 64 Id. 239. Defendant’s fourth request was given, as follows : “ There is no •statute, ordinance, or other rule of law requiring railroad trains to slow down or reduce the rate of speed at common highway crossings, •by reason of the mere fact of such crossing.” See Carver v. Detroit & Saline Plank Road Co., 61 Mich. 592, for-statement of general rule governing the action of trial courts in actions for negligence. See Potter v. F. & P. M. R. R. Co., 62 Mich. 22, 23, as to duty of traveler at highway crossing. See Guggenheim v. L. S. & M. S. Ry. Co., 33 N. W. Rep. 166, as to* care required on the part of railway company at city crossing.	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Sherwood, J. The bill in this ease is filed by the complainant to obtain a decree of divorce, the cause alleged being cruel treatment and refusal to support. The parties were married on the fifth day of November, 1880. They lived together as husband and wife about a year, in the town of Essex, in the county of Clinton, in this State, when, as the complainant avers, in consequence of the cruel conduct of the defendant, she was driven from his home, and ever since he has failed to receive her back, or furnish her with any support. The complainant, when she was married to the defendant, had two children by a former husband, who had been dead several years. These children, a daughter and son, both lived with the parties so long as the defendant lived with his wife. Personal service of process was obtained upon the defendant. He, however, neither appeared nor answered, and the bill of complaint was taken as confessed against him. Proofs were taken before a commissioner, and the complainant was examined in open court. The circuit judge, after examining the case, denied the relief prayed, and dismissed the complainant’s bill. The case is now before us on her appeal. As the case stands upon this record, we can see no reason why the complainant is not entitled to the relief she asks. The record contains no intimation'from the circuit judge that the testimony is unworthy of belief, and certainly the facts testified to present a case of gross outrage and cruelty. The testimony shows that, during the year the parties lived together, the defendant, being of sufficient ability, neglected to furnish his wife with any means of support, except $2.50; and that for ten months of the year he was in the habit of cursing and swearing at her, and using vile and indecent names, in the presence of her children, to one of whom he gave a flogging, and frequently threatened to drive her children away from home, and finally told the complainant he would live with her no longer, and drove her from the house. We think the failure to support and the cruel treatment shown in this case come clearly within the statute, and entitle the complainant to the relief she asks. The decree at the circuit will therefore be set aside, and a new decree entered in this Court in accordance with the prayer of the bill, with costs of both courts. Tne other Justices concurred. See Minde v. Minde, 32 N. W. Rep. 868, where the proof was held insufficient.	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Campbell, C. J. Defendant was sued in trover for seizing on attachment various articles of merchandise once belonging to the firm of Zemon & Sable, at Clare, in Clare ■county, and mortgaged by them to plaihtiffs for $1,500, and to Jacobson & Netzorg for $2,500. These mortgages were given December 17, 1884. Plaintiffs are merchants in Detroit, and Jacobson & Netzorg in Greenville. The facts were that, just before these mortgages were given, Mr. Jacobson, who was a relative or connection of the members of Zemon & Sable, went to Clare on their request, apparently as an adviser. While there, he advised and procured these mortgages, for the amounts named, to be given to the mortgagees. He acted for plaintiffs on a friendly understanding ■existing, whereby either firm was expected, in any case of ■emergency, to look out for the security of the other. Both mortgages were excessive, each being for several hundred dollars more than the actual debt. Zemon & Sable owed plaintiffs less than $1,000. Jacobson had the mortgages recorded, and took plaintiffs’ mortgage to Detroit, and handed it over the next morning. On that same morning, Jacobson, in plaintiffs’ store, wrote to Zemon & Sable a letter, urging or .advising them to represent to creditors that they owed what the mortgages called for, and to say, also, that Jacobson procured plaintiffs’ mortgage because his firm had guarantied plaintiffs for them to $1,500, but they owed a little more. It ■also urged the sending of what money they took in to Jaeob.son, and some to plaintiffs, and represented that Krolik & Co. would sell them goods at low rates, and would buy such as they did not keep. It was claimed that the plaintiffs5 mortgage was intended to cover future sales. No future credits were in fact given, but a small bill was bought through plaintiffs, and paid for. The questions on trial all related to the validity of plaintiffs5 mortgage as against other creditors. The questions are not numerous, and may be mostly classed together. An objection was raised on the trial to the proof of the several attachment files and records, and it was pressed in this Court that there was no sufficient proof of valid proceedings and judgments. When these documents were offered, the only objection raised was that they were immaterial. It was not suggested that they were informal or defective, and the case went to the jury on the theory that proper attachment proceedings were made out. We do not think the objection can now be widened. They were unquestionably material to the defense, and we must presume they were not defective. Some objections were also made to' inquiries concerning the details and intent of the transactions attending the making of the two mortgages. We think that whole matter was proper to be inquired into. So far as Zemon & Sable were concerned, it was a single scheme, whether right or wrong, and it cannot be said that any part of it did not bear upon the rest. It was important to know their intent, and that of Jacobson, as they were the only acting parties. It was competent to prove their fraud, if they meant any fraud, and to prove their purpose, whatever it was. Whether plaintiffs would be bound, might depend on other considerations which were presented on the trial. But proof of the transaction must come in the order of time before proof of subsequent knowledge and approval, and it was not irrelevant. Assuming that the fraud must be shown as to both, it must,usually be shown consecutively. The Jacobson mortgage was prop erly in evidence as part of this transaction. It was equally relevant, further, because possession had been taken under it, and plaintiffs’ rights were postponed to it by the order of record if it was intended to stand first, or held in parity with it if simultaneous. It is impossible to shut it out. Objection was made to the introduction of Jacobson’s letter of December 18. This came in as a part of Jacobson’s cross-examination, after he had denied giving any such advice as the letter contains. It was legitimate cross-examination, and we can see no ground for not so regarding it. It came within the lines of his examination, and was important, not only as part of the series of transactions, but also to test the accuracy of his memory or his veracity, being admissible for either purpose. But, as the court had a request presented concerning this letter, which was not given, it may as well be referred to here. It was as follows: “ The letter written by Jacobson to Zemon & Sable, in Hebrew (defendant’s Exhibit B), is not to be considered by you in determining .the good or bad faith of Krolik & Co.’s mortgage, as there is no proof' that it was written by plaintiffs’ consent, instigation, or knowledge.” It may be proper to refer again more particularly to this letter, and the circumstances under which it was written. It appears from the plaintiffs’ proofs that - it was written on the day after the mortgages were given, and on the day Jacobson arrived in Detroit, and that he had given full explanations to the plaintiffs of the mortgage and its purpose, including an expectation of further goods, if needed. There is other testimony in the case, but contradicted, that on this occasion one of the firm of plaintiffs, almost simultaneously with the letter, stated to Mr. McG-raw (who, as a creditor, had come in to make inquiries) that the mortgage was given for a debt equal to its face, and that Jacobson had guarantied the account, and taken a mortgage to secure that as well as his own. In the same interview, Jacobson represented his own-mortgage to be for no more than was due, and that plaintiffs5" mortgage was fully due. Upon these representations Mr. McGraw offered to sell out his own claim for 50 cents on the-dollar, and Jacobson and plaintiffs appear to have proposed arrangements which would have taken it up. Why they were-not completed does not clearly appear. It is not for us to settle disputed facts, or to consider what-we might have done had we been jurors. The only question in regard to this letter remaining is whether the request-asked should have been granted. It is true that all the witnesses for plaintiffs indicate that plaintiffs had no knowledge- or concern about this letter; but whether or not there were circumstances which might bear a contrary meaning is a different thing. The request was open to the criticism of being altogether too broad. The court charged very strongly that plaintiffs could not be held for the fraud intended or perpetrated by the other parties, unless they also had a fraudulent intent. Whether this letter showed any fraudulent intent in plaintiffs or not, it certainly tended to show the bad faith of the mortgage, so far as Jacobson, Zemon, and Sable were concerned, which was a main issue. The court could not have been required to give this request as it was asked, and therefore it was not error to say nothing directly about it. But we think there were circumstances which had some tendency to connect plaintiffs with it. It was written in plaintiffs’ office, after a conference upon the mortgage, and contained direct reference to the proposed furnishing of goods, which had been considered in that conference. It-contained cautions to explain the taking of the mortgage as connected with a guaranty by Jacobson, which had, according to Mr. McGraw, been stated to him by one of the plaintiffs, and so done to persuade him of the validity of the mortgage, and answer doubts which might have arisen from what would otherwise look like intermeddling. It reiterates the same representations made, as Mr. McG-raw says, by both parties to him, concerning the amount of the debts, and urged that they should be made to creditors generally. It also purported to convey a message or assurance on behalf of plaintiffs. We are not able to say that a letter written under such circumstances, by the man who had acted for all parties, in the office of plaintiffs, stating what both had adopted as their scheme to influence creditors, and conveying suggestions which infer a common purpose, might not have been legitimately referred by the jury to a common origin, in spite of assurances to the contrary. If so, it is not in our province to weigh the facts. ' With this exception, the charge was very strong in favor of all the law points raised for plaintiffs, and certainly did not err or lean against them. It gave, in substance, all that was asked. If it did not say in so many words that fraud is not to be presumed, it did say that while the burden of proof was on plaintiffs to prove the existence and extent of their debt, and the making of the mortgage, yet it was upon the defendant to establish that there was fraud in the transaction by a preponderance of proof. And we can find nothing which indicates that any improper testimony was let in, or any improper use allowed to be made of it. As the court below would not allow the jury to find against plaintiffs on any ground of sufficient agency in Jacobson to bind them, we need not consider that question, since plaintiffs obtained the advantage upon it in the rulings. The judgment must be affirmed. The other Justices concurred. 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Sherwood, J. This case was an action of ejectment to-recover the undivided seven-eighths part of 40 acres of land lying in the county of Kent. • The defendant claimed by adverse possession under tar titles, and one-eighth under the original title. The cause was tried in the Kent circuit, before Judge Montgomery, by jury, aud the defendant prevailed. The plaintiff brings error. Ten errors are assigned; two only relate to the almission of testimony. One of these was to the introduction in evidence of the deed from Jacob W. Winsor to John French, dated June 1, 1868, and the other was to the admission of the record of the patent from the State of Michigan to Nathaniel Newberry. There was no error in admitting these conveyances, and those assignments were abandoned on the hearing. Nathaniel Newberry bought of the State, about the year 1847, the land in question, and received a patent therefor. He died in 1849, leaving eight children, one of whom (Phcebe Jane) was a minor. One of the children, named Nathaniel Newberry, Jr., on the first day of January, 1851, mortgaged the land in question, with other parcels, to the plaintiff; and on June 16, 1851, the widow and other children, except the minor, quit-claimed their interest in the mortgaged premises to Nathaniel Newberry, Jr., who died in January, 1853, leaving one child, a daughter. The sale under the mortgage foreclosure occurred on the twenty-second day of April, 1853, and is the only source of plaintiff’s title, the property never having been redeemed from the sale. The daughter of Nathaniel Newberry, Jr., married Francis M. Bissell. There is no question of the right and title of the defendant to the one-eighth of the property. The property in question was sold for the taxes of 1853 to J. W. Winsor, and deeded. J. W. Winsor sold the same to George W. Hooker, and deeded it October 2, 1858. Hooker sold and conveyed the property to Jacob W. Winsor on the twenty-eighth day of February, 1859. The land was again sold by the Auditor General to Zenas G. Winsor, for taxes of 1857, and deeded January 12, 1860. Jacob W. Winsor and Zenas G. Winsor quitclaimed the property to Jackson French on the eighteenth day of October, 1860. French and wife quitclaimed the premises to Asa B. Gilbert, John J. Lacey, and Y. M. Hamilton, on the twelfth day of March, 1861. Asa Gilbert died previous to February, 1866, and Mary E. Yan Yalkenburg was his widow. February 28, 1866, John J. Lacey and wife and Mary E. Van Yalkenburg quitclaimed the property to Charlotte French. Jacob W. Winsor quitclaimed the premises on the first day of June, 1868, to John French, and John French and Charlotte French, his wife, conveyed the same to Matilda Clinton, on the twenty-fourth day of June, 1870. Matilda Clinton died, leaving Frank Clinton, the defendant, her only surviving child, in possession of the property. Phoebe Jane, on July 11, 1868, long after she had become of age, and had married a Mr. Sherman, conveyed her individual one-eighth of the lands in controversy to Mary A. Bissell; and Mary A. Bissell, September 2, 1868, conveyed the same to Francis M. Bissell; and Francis M. Bissell quit-claimed the said land to Matilda Clinton, subject to tax titles, November 4, 1872, and before Matilda died. The foregoing conveyances, ending with Matilda Clinton, and all of which were duly recorded, show the chain of paper title under which the defendant and his grantors took possession of the property, and have continued the same, and under which and his tax titles he claims to be entitled to the property in suit. In considering the question of possession under defendant’s titles, and whether or not it was adverse, their validity is of no particular consequence. The defendant claimed continuous adverse possession of the property in himself and his grantors from the date of the •deed to J. W. Winsor, in 1853, down to the time of the commencement of this suit, in 1884, and gave testimony tending to show such possession. The possession thus claimed, and its character, was controverted by the testimony offered by the plaintiff. A part of the plaintiff’s testimony upon this -subject was the deeds from Phoebe Jane to Mary A. Bissell, and from Mary A. Bissell to Francis M. Bissell, and from Francis M. Bissell to Matilda Clinton. It was claimed by the plaintiff that Mrs. Clinton’s purchase of the Bissell title •constituted her a tenant in common of the property, it conveying to her the original title to one-eighth of the property, and that she could not be an adverse holder thereafter. , The circuit judge, in his charge, held that prima facie this was true, but that the prima facie ease upon this point might ■be overcome by evidence that the possession Mrs. Clinton then had she continued under the claim of an exclusive right, and with the intention to exclude the plaintiff from any right or interest therein; that such possession, even though against a co-tenant or tenant in common, was adverse, and, upon the •evidence, submitted this question, with the other facts in the ■case, to the jury; and to this portion of the charge counsel for plaintiff excepted. We see no error in this charge. The plaintiff knew of the hostile character of Mrs. Clinton’s possession, There may be .some question, where the party does not go into possession under the conveyance which creates the co-tenancy, whether •such conveyance should be presumed to destroy an adverse holding then existing. Be this as it may, certainly the charge was within the previous decisions of this Court. Dubois v. Campau, 28 Mich. 304; Campau v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14; Campau v. Campau, 44 Id. 31; Knowles v. Brown, 69 Iowa, 11 (28 N. W. Rep. 409). The court charged the jury: “ The defense is that this title of the plaintiff has been wholly divested by the adverse possession, continued for the statutory period. All adverse possession must be open, notorious, continuous, exclusive, visible, and distinct, as well as adverse. Now, wbat is meant by this is that there must be an actual occupancy, as distinguished from a constructive possession, of the property; that is, some one must be in actual possession of the property. Not necessarily living upon the property; if the property is inclosed and cultivated, this would be a sufficient actual occupancy; and if crops were continually growing upon the premises, this would be a visible occupancy; and even though in the interim between the harvesting of a crop and the recropping of the land the succeeding spring no person was actually upon the premises, and nothing done with them, yet, if year after year the land was thus cropped and cultivated, this would be a sufficiently continuous possession, within the meaning of the term as I have given it to you. “ So, a possession is sufficiently notorious if it is open and visible, and. the premises are actually occupied so that the people passing to and fro past the premises may see these visible evidences of occupation. This would make it notorious, among those familiar with the premises. It is distinct when it is clearly defined. “And in this case I instruct you that if the defendant in this case went into possession of these premises, described in the deed of conveyance under which he claims, that deed would define the extent of his occupancy. It would not be necessary for him to occupy each acre of the premises. If he occupied some portion of it, that would be a distinct occupancy of the whole, as defined by the deed under which he entered into possession. The claim must be hostile to the plaintiff.” ' After thus defining and explaining what kind of possession is necessary to become adverse, the circuit judge, among other things, charged the jury as contained in the following paragraphs, and to each of which counsel for the plaintiff excepted: “ 1. Adverse possession of the character which I have defined, for a period of fifteen years, gives a complete title in this State, and defeats the record title of one claiming from the government. And if the defendant has held adverse possession such as I have defined, for the period of ten years, under or through the so-called Winsor tax title, the action would be barred, and the plaintiff cannot recover in this action; and this would be true if only a portion of the Winsor title was vested in him. “2. In stating this period of occupancy, gentlemen, I mean to state, and to be understood as stating, that that period of occupancy must have been for the period of fifteen years, or ten years, respectively, prior to the eleventh day of February, 1884. That is the date of the commencement of this suit; and, of course, the adverse possession must have been sufficient prior to the date of this suit to defeat the plaintiff’s action, or he would be entitled to recover under the instructions I have given you. “3. You will observe that the sole question for you to determine in this case is whether there has ,been this adverse possession of the character which I have defined, adverse to the plaintiff, since the parties became co-tenants, as well as before, and continued for a period of fifteen years; or if you find that the defendant held under a tax title, — the Winsor tax title, so called, — whether such possession as I have defined, and so adverse to the plaintiff, has continued for a period of ten years prior to the commencement of this suit, on the eleventh day of February, 1884. If you find either of these questions in the affirmative, your verdict must be for the defendant; if you find them in the negative, both of them, your verdict must be for the plaintiff. “á. I further instruct you, if the defendant held adversely and in adverse possession of the premises, within the meaning of that term as I have defined it to you in my charge, which I will not here repeat, for ten years, under or through the so-called Winsor tax title, that the action would be barred by the plaintiff, and the plaintiff would not be entitled to recover, and that this would be true if only a portion of the Winsor title was vested in the defendant; if he went in under a tax title, and held under a tax title, and there was such an adverse possession as I have defined to you was requisite to constitute the adverse possession, and that continued ten years under that tax title, that this would vest the title in the defendant, and the plaintiff could not recover.” We see nothing objectionable in these four paragraphs of the charge. They state the law correctly as applied to the facts of this case as they appear upon the record. How. Stat. § 8698; Yelverton v. Steele, 40 Mich. 538; Hamblin v. Warner, 30 Id. 95; Perkins v. Nugent, 45 Id. 156; Sparrow v. Hovey, 44 Id. 63; Campau v. Lafferty, 43 Id. 429; Bower v. Earl, 18 Id. 367. The withdrawal of the special requests to find could work no prejudice to the plaintiff. He did not present them, or ask them to be given, and made no objection to their withdrawal. The record shows the attorney for the plaintiff was not present when the withdrawal was made, but it does not show that his absence was from any fault of the court or the defendant. Really, all the facts asked to be found were submitted in the general charge, and the case was one proper to be submitted to the jury. We have now noted all the assignments needing consideration in this opinion. We have found no error in the record. The judgment must be affirmed. The other Justices concurred. See Chamberlain v. Ahrens, 55 Mich. 112; Reilly v. Blaser, 61 Id. 399 (head-note 2). See Bird v. Stark, 33 N. W. Rep. 754, as to actual knowledge of adverse possession.	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Shubwood, J. This was an action of assumpsit brought by the plaintiff in justice’s court to recover the purchase price of a self-binding harvester. The defendant pleaded the general issue, with notice that defendant would show that the machine was warranted to him by the plaintiff, when purchased, to do first-class work, to do as good work as a machine owned by James Cochran, a brother of the defendant, who resided in the neighborhood, and to give perfect satisfaction to the defendant; that defendant was to have the privilege of trying the machine in doing his harvesting, and unless it complied with the warranty, and was satisfactory to the defendant, he was not to keep it, or be obliged to pay for it; and that the machine, when used, failed to perform as warranted, and was not satisfactory to the defendant. The defendant had judgment before the justice, and upon the trial at the circuit he again prevailed, and the plaintiff brings error. A very large number of errors are assigned upon the proceedings had .in the circuit. We shall not consider them seriatim. Eight were assigned upon rulings of the court on taking the testimony. The defendant is a farmer residing near Three Eivers, in St. Joseph county, and his brother James Cochran lived in the same neighborhood. Mr. Burrows was in the employ of the agents of the plaintiff at Three Eivers, and made sale of the machine to the defendant. He knew of James Cochran’s machine. On the trial, to prove a breach of the warranty as laid by the defendant, he was allowed to state that the machine in question did not do as good work as his brother James’. This was objected to, and the rulings upon this and several other similar statements are made the subject of plaintiffs first, second, third, and fourth assignments of error. We see no objection to these rulings. The testimony only tended to prove a breach of the warranty, as claimed by the defendant, and not positively denied by the plaintiff’s agent. The comparison called for was one that any person could make who was accustomed to the use of harvesting machines, and had seen the two work, and there was no question but that the witnesses in this case were qualified in that respect. It was not necessary that the wheat in which the machines were observed should have been of the same heft and height to make the testimony competent. Those were subjects for cross-examination, and for the consideration of the jury. On rebuttal, the plaintiff offered to show that the McCormick was a good binder, and for that purpose asked the following question: “ What do you say as to the McCormick being as good a binder as any in the market?” Objection to this question was properly sustained. The merits of the machine in question alone were material in this case. While the defendant was using the machine in question in his wheat harvest, James Me Jury saw the manner in which it worked in going around the field once. He was sworn for the plaintiff. On his direct examination he said: “lama farmer. I know something about binders. Father has one now, — the McCormick. I was in the defendant’s field once last harvest while he was harvesting. Saw the machine work. It was working well. I think it worked well.” On cross-examination the witness stated: “Arthur Cochran was driving. My attention was not called to the working of the machine particularly.” He was then asked by plaintiff’s counsel: “Did the defendant (Mr. Cochran) or his boys make any ■complaint that it was not working well?” Certainly what the boys might have said was both immaterial and hearsay ; and, so far as the question related to the defendant, it was improper examination, as it does not •appear any conversation whatever was had with him, and the most that could be claimed for it is that there was a probability, if the machine worked badly, defendant would have so •said to the witness. The witness did not represent the plaintiff at the time, and it does not appear that he made known his business in the defendant’s field, or that he was within speaking distance of the defendant, or any of his boys. We think, under these circumstances, so far as the -testimony called for related to the defendant, it was clearly subject to the objection taken. When the testimony closed, the plaintiff’s counsel asked the court to charge the jury as follows: “1. In this case, the plaintiff has shown a sale of the machine at a fixed price, and a delivery of the same to defendant, and the plaintiff is entitled to recover unless you find a breach of the warranty which accompanied this sale; and the burden of proof is on the defendant to show the breach ■of the warranty. “ 2. The plaintiff claims that the warranty was that the machine would do good work. If you find this to be the warranty, then if the machine did do good work, or would have done good work if properly managed, or could have been easily fixed so as to do good work, then the plaintiff should recover; and, if the machine did not work well, it was the duty of the defendant to notify Schoch & Griffiths, and give them an opportunity to remedy the defect, if they ■could; and, if he did not do so, the plaintiff is entitled to .recover. “3. The defendant claims the warranty to be that the machine should do as good work as his brother James’ machine, which was a Deering, with the same kind of a binder as the machine in question; and if you find the machine in question could, if properly managed, do as good work as his-brother James’ machine, then the plaintiff should recover; and it was the duty of defendant to notify plaintiff’s agent if the machine did not do good work, so that it might be remedied. “ 4. The defendant testified that he kept the machine during the entire wheat and oat harvest, and until October following, without saying a single word about not desiring to keep the machine. It was the duty of defendant to speedily notify plaintiff that he did not intend to keep the machine;. and if he used it to cut oats, and after that kept the same until October without complaint, he is guilty of laches, and has thereby waived all breaches of warranty, and plaintiff' must recover. “ 5. If you find from the evidence that the machine was-warranted to give defendant satisfaction, it should be a. reasonable satisfaction; and, if it did not work to his satisfaction, he should give reasonable notice. “ 6. If the jury find from the evidence defendant was to-have the whole of his wheat harvest to try the machine, and that he afterwards used it to cut his oats, then he must be-presumed to have accepted the machine, and your verdict, should be for the plaintiff.” The circuit judge gave the first and fifth requests, but refused to give the others except as modified in the general, charge. It was no part of the contract between the parties that we-have been able to discover from the record that, if the machine did not comply with the contract when operated, the defendant should notify the plaintiff of the fact, or return-the machine to the plaintiff. The contract seems to have-been silent upon that subject. It appears, however, that the defendant did give the plaintiff, once or twice while he was-attempting to use the machine and make it work, notice that it did not do good work, and that he was not satisfied with it; and the judge told the jury, if they found the contract to-be as defendant claimed it, this was all he was required to-do-; that he was not obliged to return the machine. We find no error in this instruction. It does no more than state the law as laid down in the elementary works and reports. 2 Add. Cont. 942; 2 Benj. Sales, § 978; Leake, Cont. 409; Anson, Cont. 286; Starr v. Torrey, 22 N. J. Law, 190; Gibson v. Vail, 53 Vt. 476; Hunt v. Wyman, 100 Mass, 198; Phelps v. Whitaker, 37 Mich. 72; Osborn v. Rawson, 47 Id. 206; Wood Reaping & Mowing Machine Co. v. Smith, 50 Id. 565; McCormick Harvesting Machine Co. v. Chesrown, 33 Minn. 32 (21 N. W. Rep. 846). Subsequent to the giving of the plaintiff’s first and fifth requests, the court charged the jury as follows: ‘‘ The defendant had a right to give the machine a fair trial under all the circumstances, and was under no obligations to return it to the plaintiff when it failed to work satisfactorily to him, unless you find he expressly agreed so to do; and the fact that he might have concluded to use the machine .through harvest, or have allowed it to remain on his farm after harvest, is not sufficient of itself to show an acceptance on his part. If the jury find from the evidence that the plaintiff’s agent knew that the machine was not working well from time to time, and agreed to put it in proper condition d„uring such time, the defendant was under no obligations to return it) or offer to return it; and the fact that he allowed it to remain on his land, and used it while it was there in this unsatisfactory condition, and while they were endeavoring to repair it, would not be considered an acceptance on his part. If you find from the evidence that the defendant, notified the plaintiff that the machine was not doing good work, then it became the duty of the plaintiff to see that the machine was made to work satisfactorily, and the defendant, was under no obligations to notify them the second time that it was not. There is no evidence that the defendant was k> notify the plaintiff that the machine did not do good work, or to notify the plaintiff that he did not intend to keep the machine. You are to say what the warranty was, and whether it was made good by the plaintiff.” The evidence appearing in the case' fully warrants the giving of these charges. The court also further charged upon the subject of the plaintiff’s requests: “If the jury find from the evidence that the plaintiff agreed to furnish the defendant a machine that would do as good work in harvest as his brother’s (James Cochran), and further find that the machine furnished would not do as good work as James Cochran’s, then their verdict should be for the defendant. If you find there has been a breach of the warranty in the machine not doing work as it was to, that it was not satisfactory to the defendant, then the fact that he used it to cut his oats did not raise the legal presumption that he had accepted the contract, and was not bound to pay for it. The simple rule would be, if he used the machine beyond the time he was to at first, he would be liable to pay for the use of the machine, as if he had taken his horse or wagon, or .anything else, and used it.” These, with some other instructions given in the general -charge, contained all that was necessary and proper to go to the jury upon the subjects included in the plaintiff’s requests. Eighteen paragraphs of the charge given voluntarily by -the court are excepted to. We find no error in any of these .paragraphs. Several of them, with great propriety, might have been omitted; but we fail to discover that any impressions would be likely to be made thereby upon the jury prejudicial to either party. The judgment must be affirmed, with costs. The other Justices concurred.	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Champlin, J. On the fourth of August, 1885, the complainant filed her bill for a divorce against the defendant, who answered, and asked the benefit of a cross-bill, and prayed for a divorce from complainant. Proofs were taken, covering over 700 printed pages, and a. decree was entered in the circuit court for the county of Houghton in complainant’s favor, dissolving the marriage between her and the defendant, and granting alimony, to be paid until further order, of the sum of $480 annually, to be paid in monthly payments, and to be secured by defendant- No relief was granted on the cross-bill. The parties to this suit were married December 2, 1884, at St. Louis, Missouri, and lived together until some time in -the following June. The defendant, John S. Morrison, was at the time of this marriage a widower, and the father of three children by his former wife, the eldest of whom was a. daughter, aged about 17. He. was in the employment of the-Calumet & Hecla Mining Company, as foreman in its blacksmith shop, at'a salary of $1,800 a year. His brother had married a sister of complainant, and resided in the vicinity-' He appears also to have been acquainted with other members, of the family. In 1873 the complainant was married to one McCall, in the province of Canada, by whom she had three children, the eldest being about 10 years of age at the time of her marriage with defendant. McCall deserted her in Canada, and came to Michigan, and stopped at Sault Ste. Marie, whither, after a time, she followed him, when he again fled, and his whereabouts became unknown to her. She visited her sister at Calumet, where defendant saw her. She applied for a divorce from McCall, and filed her bill in the circuit court for the county of Chippewa, alleging therein, as cause, desertion and failure to support. That bill was filed the seventeenth day of October, 1883. The subpoena to appear and answer was returnable November 6, 1883, and returned by the sheriff that he was unable to find defendant in his county, after diligent inquiry; but that he had been informed that he was somewhere in the State, which he believed to be true, but was unable to learn his whereabouts. Affidavit was made and filed by the solicitor for the complainant, stating that, as such, he had made diligent search and inquiry for, and as to the place of residence and whereabouts of, said McCall, and, after such search and inquiry,, he was unable to find the defendant, or his exact whereabouts ;. that his last known place of residence was in Sault Ste. Marie, Chippewa county, State of Michigan; and that, to the best of his knowledge and belief, derived from such search and inquiry, the defendant was then a resident of the State of Michigan. Upon filing this affidavit, an order of publication was granted by the circuit judge, which recited that process could not be served upon the defendant by reason of his continued absence from, or concealment within, the State, and the order required the defendant to appear and answer within three months from the date of the order. Proof of publication was duly filed, and also of tbe nonappearance of defendant, and an order was entered on February 12, 1884, taking the bill as confessed. The case proceeded to a decree, which was entered on the eighteenth day of March, 1884, granting a divorce upon the ground of desertion. This decree is assailed by the defendant in this suit as being invalid, for which reason he alleges that his subsequent marriage with complainant is also void. The invalidity consists, it is said, in the insufficiency of the affidavit upon which the order of publication was based; that it does not affirmatively and positively appear from the affidavit that the defendant was then a resident of this State ; that it only shows that his last known place of residence was at the Sault, and offers nothing to show’ his present place of residence, and contains nothing to show that the non-service was by reason of his absence from the State, nor of his concealment within it. In support of this we are cited to the cases of Torrans v. Hicks, 32 Mich. 307; Merrill v. Montgomery, 25 Id. 73; Soule v. Hough, 45 Id. 418. It is unnecessary to review these authorities. The whole subject was very fully considered in the eases of Pettiford v. Zoellner, 45 Mich. 358, and Colton v. Rupert, 60 Id. 318; and within the ruling of these cases the affidavit was sufficient to confer jurisdiction upon the court, and the decree made is unassailable in this proceeding. After these parties were married, they proceeded upon a wedding trip, and did not return to Calumet until the sixth of February, 1885, when they went to housekeeping in a house owned by the mining company, and united their two families under the same roof. They did not long remain a happy family. An antagonism soon showed itself between fhe eldest daughter of defendant and complainant. The younger children quarreled; the elder sister espoused tbe ■cause of her brother and sister, the mother, of her own chil •dren. The defendant endeavored to stand neutral, but there ds no neutral ground which can be long occupied in relations such as these. It is needless to recapitulate the troubles which, beginning on the tenth of February, continued until ■the separation, in June following. The charges of ill treatment and cruelty alleged in the bill •of complaint are supported only by the testimony of complainant, and I am satisfied that her testimony is colored by ■her feelings, and that the transactions which she narrates as having occurred when no witnesses were present are largely •overstated. There can be no question, from the testimony, that her conduct and conversation were such as justified a ■suspicion of the unsoundness of her mental condition. Her ■attending physician testified, and it is nowhere contradicted, that she was afflicted with a disease called “ hysterical mania,” which required treatment by a specialist in mental ■diseases; and efforts were made to have her go to a retreat ■at Guelph, Canada, for examination and treatment. Attempts were made by some one to burn the residence occupied by defendant and complainant, and also the barn upon the premises. Suspicion fastened upon complainant. She was •aware of it, and retained counsel to advise with her. This suspicion was entertained by the defendant, but at the time he was ■also of the opinion that, if it was she that did it, it was the result of her mental condition, and not of a criminal design to commit the offense of arson. He was advised by her family physician that she ought, at all times, to be kept under surveillance, and not be left alone, and to this end a nurse ought to be employed, not that she needed nursing, but ■as a companion; and he made efforts to comply with the advice of her physician. She and her counsel were aware of this opinion respecting her mental condition, and were consulted about her going for examination and treatment, and ■she promised to go, but declined, at the last moment, for fear that defendant designed to procure her incarceration in ■an insane asylum, whether she was insane or not. She offered, after the separation, to return and live with, defendant, if he would send his eldest daughter away. She also expressed a willingness to go off on a trip with him off three weeks’ duration, and applied to the superintendent off the mine for and obtained leave of absence for him to do so. These facts are significant as showing that she regarded her charges of cruelty against him as trivial, if such cruelty had-ever existed. The testimony shows that she had been afflicted, with hysteria before her marriage with defendant, and that, both she and defendant were advised by friends and relatives against contracting the marriage relation. They entered, into this relation knowing the character and disposition of each other, and their surroundings. His conduct cannot be regarded as altogether blameless, and was not calculated, in. all instances, to make, his wife happy and contented. No sufficient excuse is given by him for absenting himself from home until very late hours of the night. His proper place evenings, when not kept away by the demands of business, was at home, in the society of his wife and family. Where-both are to blame, neither should be granted a divorce. If incompatibility of temper were a legal cause for a divorce, a cause would be made out in this case. But it is not.. The marriage relation should not be considered as a garment, to be worn or cast aside at pleasure. The stability of the State, the welfare of society, the sanctity of the home, demand that it should not be dissolved for light and transient causes, nor unless the charges made in the bill of complaint are satisfactorily established by the .testimony, and the party applying is free from blame as to the procuring cause. With regard to the fires, the testimony does not convince my mind by whom they were set. After weighing all the testimony, the question is left as much in doubt as ever. Ifc is unnecessary, in the disposition of the case, to decide it. I think, upon the whole testimony, that the decree of the court, below should be reversed, and the bill of complaint dismissed, without costs in this Court; the defendant to pay the costs of the court below. Campbell, C. J., and Sherwood, J., concurred. Morse, J. I think the defendant is entitled to a decree of' divorce from his wife, but agree on dismissing her bill.	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Sherwood, J. The plaintiffs bring ejectment against the defendant to recover the west half of section 26, and the south half of the north-west quarter of section 23, in town 52 north, of range 30 west, situate in the county of Baraga. The title of the plaintiffs, by a chain of conveyances from the United. States down to the time of bringing suit, and the ouster of defendant, were established on the trial. The defendant seeks to defend under tax deeds given by the Auditor General upon sales made of the property for taxes for the years 1869, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879. 1880, and 1881. The cause was tried in the Baraga circuit before Hon. W. D. Williams, circuit judge, without a jury, who made a special finding as follows: “ That the defendant is guilty of unlawfully withholding the premises above mentioned, as alleged by the plaintiffs in their declaration, and that the plaintiffs are entitled to hold the same in fee;”— And gave judgment accordingly. The defendant brings error. The record is quite full, and must be regarded as containing all the evidence to be considered on the question raised. All the assignments of error are based upon rulings relating to the validity of the tax titles, and to the admission of evidence relating thereto. The finding of the court takes the place of a verdict by a jury, and, so far as questions of fact are concerned, is conclusive, if there is any evidence given tending to support it. The general finding in the case must control, unless it is based upon testimony improperly admitted; and this leads directly to the errors alleged relating to the testimony. Nine errors are assigned involving the rulings of the court in taking testimony. We have carefully examined the record, and the arguments of counsel relating to each of these assignments, and do not find any error committed by the court in any of the rulings. The other nine assignments of error raise legal questions relating solely to the validity of the tax titles offered in evidence by the defendant. These questions are not new. They have been before this Court, and nearly all passed upon, and those which have not fall within the principle of the decisions of this Court already made, and a rediscussion of the questions would not be profitable now, and certainly is entirely unnecessary to a proper decision of the case. That the several tax titles offered in evidence are clearly invalid under our previous decisions is clear, and the circuit judge did right in so holding. Cooley, Tax. (2d ed.) 339, 429, 430, 492, 517; Clute v. Barron, 2 Mich. 192; Lacey v. Davis, 4 Id. 140; Clark v. Crane, 5 Id. 154; Crittenden v. Robertson, 13 Id. 61; Farmers’ & Mechanics’ Bank v. Bronson, 14 Id. 373; Case v. Dean, 16 Id. 33; Moser v. White, 29 Id. 60; Powers’ Appeal, Id. 504; Robbins v. Barron, 33 Id. 124; Upton v. Kennedy, 36 Id. 220; Houghton Co. v. Auditor General, Id. 271; S. C. 41 Id. 30; Silsbee v. Stockle, 44 Id. 565; Thomas v. Collins, 58 Id. 64; Busch v. Nester, 62 Id. 381. We may properly say, in conclusion, the rejection of the •deeds complained of, when offered in evidence, was correct. Their invalidity appeared on the face of the instruments. How. Stat. §§ 1092, 1165, do not apply to such a case. The Legislature did not intend to say that a paper shall be held prima facie valid, when it carries upon its face the evidence that shows it void.' The record shows no error that we have been able to discover, and the judgment entered upon the finding of the circuit judge must be affirmed. The other Justices concurred. Note. — Act No. 229, Laws of 1881, amended by Act No. 7, Laws of 1882, provided for the sale of “State tax lands'” by the Auditor General at a gradually reduced price, 'measured by fixed dates, and the amended act authorized the sale of all such lands remaining unsold at the annual tax sales of 1884, which were to be conducted in the same manner, as near as may be, as sales for delinquent taxes had been by county treasurers, who were required to give to purchasers the like certificates, and with like effect, as those theretofore given to purchasers of State tax lands, and the Auditor General was required, on their presentation, to execute and deliver to the purchaser a deed conveying all the right, title, and interest of the State in and to said State tax lands, subject to taxes for 1881 and subsequent years. This amended act was approved March 13, 1882, and took immediate effect, and was passed, as was the original act, to enable the State to dispose of the immense quantity of State tax lands which had accumulated on its hands. March 14, 1882, an act revising the tax laws of the State (Act No. 9, Laws of 1882) was approved, and took immediate effect. This act provided for proceedings in the equity courts, culminating in decrees fixing the amount of the tax lien, and providing for a sale of lands charged therewith by the county treasurers on the first Monday in May, instead of October, as provided by the old law. The first sale was held May 5, 1884, under the new law, at which time the sales of State tax lands provided for by sections 4 and 5 of Act No. 7, Laws of 1882, were also held. Act No. 11, Laws of 1882, approved March 14, 1882, and ordered to take immediate effect, repealed the tax law of 1869, and various other acts affecting taxation, with a saving clause, by which the repealed acts remained in force only for the completion of all proceedings theretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder, and the conveyance of all land theretofore sold, or that might thereafter be sold, and all actions commenced and then pending, under the provisions thereof. Goodman v. Nester, post. The constitutionality of the general tax law of 1882 was questioned in the Marquette and Wayne circuit courts, and sustained in the one and denied in the other, and the Supreme Court, by an equal division, affirmed both judgments. State Tax Law Gases, 54 Mich. 350. Act 153, Laws of 1885, approved June 9 of that year, and taking immediate effect, repealed the law of 18.82, and-substantially restored the 1869 law, so far as the sale of lands delinquent for taxes was concerned. Section 68 provided for the sale, under the provisions of the new law, of all lands held by the State under bids made at the tax sales of May 5,1884, and of all lands “heretofore assessed or returned as delinquent for non-payment of taxes thereon upon which no sale has been made.” Section 118 provided that any tax deed issued pursuant to a decree made under the general tax law of 1882 should transfer to the grantee the lien of the State on the land for the consideration expressed in the deed, and converted such deed into a mortgage for such amount, with the right on the part of the grantee to foreclose it at any time within two years from June 9,1885. September 29, 1885, in the case of Thomas v. Collins, 58 Mich. 64, the Supreme Court held a sale made under the 1882 tax law, for the taxes of 1881, void, for the reason that under its title said law was entirely prospective in its operation. February 3, 1887, in the case of Nester v. Busch, post, the Court decided that the provisions of section 118 of Act No. 153, Laws of 1885, above cited, were not fairly within the title of the act, which was identical with that of the general tax law of 1882. March 1, 1*87, Act No. 17, Laws of 1887, was approved, and provided that all proceedings for the collection of unpaid taxes assessed prior to the passage of Act No. 153, Laws of 1885, and for the sale of property, might be had in accordance with its provisions, and should be as valid-as if such taxes had been assessed under the 1885 act, and also attempted to validate all sales made under said act. In the case of Davenport v. Auditor General, 38 N. W. Rep. 211, the Court held that portion of the general tax law of 1882 providing for the assessment and review of property constitutional, and that an assessment and review in the spring of 1885 for the taxes of that year, made under the 1882 law, was legal, and that the collection of taxes thereafter levied by virtue of such assessment, under the 1885 law, could be enforced under the provisions of the latter act. In Humphrey v. Auditor General, 38 N. W. Rep. 214, a bill was filed to restrain a sale for taxes assessed in 1884 under the 1882 law, based on the provisions of the 1885 act. The case was being argued the day the 1887 act took effect, and the Court dismissed the bill, and held the taxes a lien on the land, but for want of proper legislation their collection could not be enforced until the law of 1887 took effect, and that proceedings to that end must be taken de novo. November 1, 1888, in the case of Hall v. Perry, 40 N. W. Rep. 324, the Court held a sale of land made under the retroactive provisions of the 1885 law for the taxes of 1882 and 1883, assessed under the 1882 law, absolutely void, the 1885 law being prospective only in its operation; and that section 2 of Act No. 17, Laws of 1887, which attempts to validate such void sales, was unconstitutional.	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Sherwood, J. The plaintiff in this case brought suit against the city to recover damages for injuries to his person and property received by falling through a bridge on the tweniy-seventh day of September, 1884. The plaintiff was attempting, at the time, to drive his traction engine over the bridge, which was made of iron, and spanned a mill-race, which crossed Main street, in said city, diagonally. The bridge gave way, and precipitated the engine into the race, injuring it and the plaintiff, and he now brings this suit to recover the damages sustained, basing his action upon the failure of the city to properly construct the bridge, and thereafter to keep the same in suitable repair. The cause was tried in the Shiawassee circuit, and the jury rendered a verdict for the plaintiff for the sum of $550 damages, and the defendant brings error. The bridge in question was built during the year 1878. The race over which it was constructed crosses the street at an angle of about 45 degrees. The structure was an iron truss-bridge, with four iron beams running parallel with the race, and about 10 feet apart. The floor was supported upon wooden joists two and a half or three inches thick, and eight inches wide. _ The ends of the joists rested upon iron lugs, fastened to the sides of the beams, which were about a quarter of an inch thick, extending out three inches from the beam. They were four inches wide, and placed about fifteen inches apart. The plaintiff does not complain of any defect in the plan of the bridge; neither does he claim that, if it had been properly constructed and kept in repair, it would have been dangerous; but, by reason of the improper construction, it more easily got out of repair, and that the city authorities should have used more vigilance, for that reason, in looking after its safety. „ , It was the theory of the plaintiff upon the trial that the joists had been allowed to move, from the constant jolting produced by the passage of heavily loaded vehicles over the bridge; that it so misplaced the ends of the joists upon the lugs that they were easily thrown off by the great pressure of the plaintiff’s engine when it came upon the planks; and that ordinary care required the city authorities to have fastened the joists in such manner that they could not have been thrown off the lugs by any load weighing no more than the plaintiff’s engine. Upon this theory the plaintiff’s testimony was offered. No question was made but that the bridge was built by the city, and that it was its duty to keep the same in a reasonably safe condition for public travel; neither was it contended that, when said bridge is in good repair, it is not sufficiently .strong to sustain the weight of the plaintiff’s engine. It is not claimed, either, that plaintiff did not use due care in ■driving the engine upon the bridge when the accident occurred. The bridge was about 22 feet wide, and 50 feet long. When the accident occurred, the plaintiff had driven his engine upon the east end of the bridge, and was near the west end, and a little north of the center. Twelve errors are assigned to the rulings of the court in receiving and one in rejecting testimony. We shall consider only those assignments which were brought to our attention upon the argument. The first assignment relates to testimony showing the shape and thickness of the lugs, and was competent. The manner in which the bridge was built had much to do with the vigilance required in keeping it in repair. The second assignment related exclusively to the strength of the bridge to sustain heavy loads at the time of the trial, and after the structure had been changed. This testimony was erroneously admitted. It was prejudicial to the defense. It was clearly immaterial what the condition of the bridge was three months after the accident occurred. The fourth complaint is that the plaintiff was permitted to show that he had work for the engine to perform for many days ahead when the injury to it and himself took place. We see nothing incompetent in this. It was proper for the consideration of the jury upon the question of damages. The sixth assignment relates to the condition of the bridge but a few days before the accident, when another person driving over it found the planks loose, by reason of which his horse fell through the bridge. This testimony was competent, as the bridge was not repaired before the accident occurred to the plaintiff. The proof presented to show that the joists were not put on the bridge in a proper manner is complained of in the seventh assignment of error. We think this evidence was competent. While it was not competent to show that the plan of the bridge was not the best, or as good, perhaps, as it might have been, it was proper to show that the bridge had ■been defecLively constructed, not according to the plan, and had been allowed to remain so until it had actually become ■dangerous by neglecting the necessary repairs. It was not competent to show in what manner the defend ant repaired the bridge after the injury to the plaintiff occurred, and it was error to admit testimony for that purpose. This disposes of the eighth assignment. After evidence had been offered showing the condition of the lugs where the engine went down, a witness was asked: “ How were they on the other parts of the bridge, — the other lugs? Were any of them bent?” We think this was proper. The general condition of the bridge at the time was involved in the issue, and the ninth assignment of error cannot be sustained. Neither can the-eleventh and twelfth. They both relate to the manner of the construction, or rather the placing, of the joists. What we have already said disposes of both these assignments. Witness James H. Calkins was sworn on the part of defendant, and, among others, was asked the following, question: “I wish yon would tell the jury, in your judgment, how that engine must have gone down, — by what reason?” Before this question was asked, the witness had stated that he was at the bridge in a few minutes after the engine went, down, and examined the premises thoroughly; saw the lugs,, and found several of them bent down and some of them broken; saw the ends of the joists that had laid upon the lugs, and described their appearance. His testimony shows that he-was possessed of more than ordinary knowledge and skill in. such matters, and the plaintiff’s case rested largely upon theory, and to that extent we think the testimony was competent. It may or may not have been rebutting. If not, it certainly could not have harmed the plaintiff. It should have-been admitted. Ten exceptions are taken to as many different portions of the charge and refusals to charge. The court refused to give the defendant’s first request,, which is as follows: “If the jury find that the bridge in question was reasonably •safe and fit for ordinary travel, — for the ordinary modes of travel in use at the time of its construction, — the city cannot be held liable for any injury occasioned by an unanticipated and extraordinary use of the same; such as running steam-engines over it by self-propulsion.'” The last sentence of this request goes too far. It substantially says the running of the plaintiff’s steam-engine over the bridge in the manner he did was at his own peril. Whether this was so or not depended upon the facts to be found by the jury, and which could not be passed upon by the court; otherwise the instruction would have been correct. The remaining exceptions are to the charge as given, which,, upon the important points in the case, is as follows: “ A municipality, like the city of Owosso, must know what is going on and must act through its officers and agents, and through them it may know of the existence of a defect in a highway or a bridge. And when such knowledge is gained by its officers or agents, the corporation may become liable) for negligence in not making repairs where repairs are needed. ■On the other hand, though they may not have notice and knowledge, a defect may exist and be unknown, and the corporation still be liable on the ground that the prime fault ■consists in being ignorant of the existence of the defect; for\| a want of knowledge may, under given circumstances, imply, want of due care. The duty of a city is to exercise, through) its officers and its agents acting for it, a reasonable and supervisory care over its highways and its bridges, and, within reasonable limits, be watchful of their condition and safety,) and to see that they are kept in a reasonably safe condition for public travel. A corporation is not bound to extraordi-) nary care or extraordinary diligence, but only an ordinary care and ordinary diligence. It is not an insurer of safety. It does not warrant or undertake against accidents and injuries. It only undertakes that the bridge which is to be crossed is reasonably or ordinarily safe for public travel. “ This question of want of reasonable care, or negligence, must be determined by the circumstances of each case. What circumstances would be considered a want of ordinary care when applied to one bridge in one locality would not ha so considered in the case of another bridge in a different locality.' A bridge of long standing would require closer and more frequent examination than a new bridge. A bridge in a densely-populated community, upon a main thoroughfare, with daily heavy travel, would require' more vigilance in its supervision and care than would a like bridge in a thinly-settled part of a township, or in a city with only a light or occasional travel. A difference, also, in the material out of which the bridge is constructed, or on which rests the flooring of the bridge, — whether the timbers used were suitable- or otherwise, were of full length or shorter than they should be, — and the permanency of the construction, would all have to be considered by the jury in determining the question of ordinary care, or want of ordinary care. “ I charge you that if you find that the bridge was defectively maintained, in the manner mentioned, and on that account the injury occurred, and the plaintiff was without fault on his part, and the jury find farther that this defect in the bridge had remained and been in the condition complained of such a length of time that defendant should have known of it, then the plaintiff is entitled to recover. If you find, the defects complained of, — that is to say, the liability of the planks and joists to move and drop hffi their supports by the jolting of passing teams and loads, — and this rendered the bridge unsafe for travel, and might have been discovered by an examination of the position of the planks and joists, then the city could not refuse to see what others could see, and they would be chargeable with negligence for not knowing these facts; and, if the plaintiff was injured without, fault on his part, he ought to recover. [Stebbins v. Keene, 60 Mich. 214; Medina v. Perkins, 48 Id. 67-] “If,the jury find that the bridge in question was not in good repair and in a condition reasonably safe for public travel at the time of the accident, on which account the injury occurred, and the plaintiff was not in fault in going or driving his engine upon it, and the defendant ought to have-known of the unsafe condition of the bridge, then the plaintiff would be entitled to recover just damages. “Before the passage of Act 244, Laws of 1879, there was-no legal duty requiring a township, city, or village to keep in repair its highways and bridges, and no action could be maintained for an injury suffered by reason of a defect in such bridge or highway; but by the act of 1879 a duty was-created on their part to maintain in a reasonably safe condition their highways and their bridges. But this act does not impose the duty to build new bridges, nor bridges of any kind. A municipal corporation is vested with, certain legislative powers confined to the territorial limits of the city or corporation; and, when it has acted in determining the kind of bridge it will construct, the wisdom or correctness of such legislative determination cannot be considered or become a subject of review by a court or jury. Such determination is final. I therefore charge you, in this case, that the plaintiff cannot recover in this case upon the ground that the plan or method of constructing the bridge was not as good and durable as some other method or plan may have been. [Lansing v. Toolan, 37 Mich. 152; Toolan v. Lansing, 38 Id. 315; McCutcheon v. Homer, 43 Id. 486; Detroit v. Beckman, 34 Id. 125; Burford v. Grand Rapids, 53 Id. 98.] “The bridge was built in 1878, when the municipality owed no duty to the public or individuals to build bridges, and its action cannot be reviewed in this action. But the act of 1879 made it the duty of townships, villages, cities, and corporations to keep in good repair, so that they will be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-wulks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel. But the statute also provides that, when an action is brought under this act, it must be shown that such township, village, city, or corporation has had reasonable time and. opportunity, after such highway, street, cross-walk, or culvert became unsafe or unfit for travel, to put the same in a proper condition for use, and has not used reasonable diligence therein. That is the language of the statute which creates the duty and gives-the right of action to the party injured, and this proviso is as important as any part of the act. “ Before the plaintiff can recover in this case, gentlemen, you must be satisfied, by a preponderance of evidence,— “ 1. That the plaintiff has sustained an injury. “ 2. That the injury was caused by the bridge being out of repair by reason of the defendant’s neglect to keep such bridge in good repair, and in a condition reasonably safe and fit for travel; and, also, that a reasonable time and opportunity, after such bridge became out of order and unsafe and unfit for travel, if you find it out of repair, had elapsed and expired, and that the defendant did not use reasonable diligence to repair and put the same in proper condition. “ This negligence urged against a township or city, and its liability, can only arise after it has had notice of the unsafe condition of the bridge, or where the want of repair or bad condition of the bridge by reasonable diligence could have been discovered, and where it continued for such a length of time that the want of knowledge on the part of the city would be regarded as negligence on its part.” [Fulton Iron & Engine Works v. Kimball, 52 Mich. 146.] We find no error in that portion of the charge last quoted, and which contains the clauses excepted to in the remaining assignments. Indeed, we think the law of 1879, as expounded by the learned circuit judge, is peculiarly applicable to the facts in this case and unexceptionable, and renders further discussion by us unnecessary. But for the minor errors noticed, which might possibly have been prejudicial to the defendant, the judgment will be reversed, and a new trial granted. The other Justices concurred. See Davis v. Jackson, 61 Mich. 538. See Stebbins v. Keene, 60 Mich. 217. See Carver v. Detroit & Saline Plank Road Co., 61 Mich. 585 (headnote 4).	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Champlin, J. Respondent was convicted of the crime of seduction. But one act was charged or claimed to have been committed, and that the prosecutrix swore was under a promise of marriage. .No attempt was made to show that she was not a woman of previous chaste character. On her direct and cross-examination she testified to the use of considerable force by respondent before he accomplished his purpose, and said she would not have consented if she could have prevented it. Her testimony given on cross-examination before the justice, signed by her, was produced and identified by her, and was introduced and read to the jury, as follows: “I did not consent to his doing that to me, and would not, only he held me so tight I could not help it. I would not have said anything about this matter, or made Peter any trouble, only I found I was in a family way. If it had not been for that, I would have let him gone where he liked.” The counsel for defendant requested the circuit judge, in writing, to charge and instruct the jury as follows: “1. If the jury find from the evidence that there was any other inducement or motive which induced or led the prosecutrix to submit herself to the defendant, except the promise of marriage, then the jury cannot convict the defendant of seduction. “2. To convict the defendant of seduction, the jury must find two facts, viz.: (1) That the prosecutrix consented to the ac. of copulation with the defendant freely and willingly; (2) that she was induced to thus consent by reason of a promise of marriage made by defendant prior to the act of connection. “3. If you find from the evidence that she submitted to the act of connection unwillingly, or through force or fear ■of defendant, the jury cannot convict the defendant of seduction. “4. If the jury find from the evidence, that the prosecutrix submitted herself to the defendant partly because of a promise of marriage, and partly through force or fear of •defendant, then the jury cannot convict the defendant of seduction. “5. The jury must find from the evidence, before they can convict the defendant of seduction, that there was a promise of marriage between the defendant and prosecutrix, made prior to the act of connection, and that said promise was understood and relied upon by her, and that she yielded to the act with defendant because of said promise, and did so freely and with full consent. “ 6. If the jury find from the evidence that the prosecutrix would not have submitted herself to have connection with •defendant on the sixteenth day of November, 1884, without the force used by defendant, as testified to by her, then the jury cannot conviet the defendant of seduction. “ 7. If the jury find from the evidence that the act was done against the will and wishes of the prosecutrix, then the jury cannot convict. “8. In order to convict the defendant of seduction, the jury must find from the evidence a promise of marriage made by the defendant to the prosecutrix, and in consideration of such promise she freely and willingly consented to have connection. “ 9. If the prosecutrix was compelled by force or fear of defendant, in whole or in part, to submit to the act of connection, then the act would not be seduction, and the jury cannot conviet.” The circuit judge declined to so instruct the jury, and on his own motion charged and instructed them as follows: “ Gentlemen of tbe Jury: This action is brought by the people against the defendant under the provisions of the statute which provides for the punishment of any man who .shall seduce or debauch an unmarried woman. In this case the defendant is charged with having seduced and debauched the complaining witness, Nettie Josephack, on the sixteenth •day of November, 1884, in the township of Jordan, in this county. The testimony on which the people rest is the testimony of the complaining witness. Her testimony stands before you uncontradicted by any other witness in the case. You.therefore have no conflict of testimony to reconcile, ■except it be conflicting statements of tbe complaining witness. The fact that the complaining witness and the defendant had sexual intercourse on that day, in that township, is not disputed; and you may take that fact as established in ■examining this case. The question for you to determine, then, is, what were the inducements that led to this sexual intercourse F They may be, or they may have been, occasioned in three ways: “ 1. It may have been from the mutual desire of the parties, without undue influence of either, to gratify their passions. In that case, if you should And such was the case, then your verdict will be, ‘Not guilty.’ “ 2. It may K&ve been by the seductive influence of the •defendant. But the complaining witness has testified to no acts in that line except the promise of marriage. Therefore, in order to convict this defendant of the ofEense here charged, under tbe testimony before you, you will have to find that the inducement which led to her submitting her person to the carnal intercourse of the defendant was the fact that he, for that reason, promised to marry her. If you find that that was the reason of her submitting to his embrace, then your verdict will be, ‘ Guilty.’ “3. If you should find from the testimony in the case that she gave no consent whatever; that the intercourse was obtained by force and compulsion, — such an obtaining of carnal intercourse with a woman is rape, and it is a higher crime than the one you are brought here to consider. It would be against public policy to allow a prosecuting officer to bring a •charge of seduction where the crime was rape, because, if the law allowed him to do so, he might allow parties to escape with a light punishment where State’s prison for a long term of years was the punishment that should be meted out for that offense. “ The crime of rape consists of, or is defined by Bouvier to be: ‘A carnal knowledge of a woman by a man, forcibly and unlawfully, against her will.’ Therefore, to find that this man committed a rape on this woman, you will have to find that he committed that ‘forcibly and unlawfully, and against her will.’ If she consented to the connection, it was not rape. “ Therefore, gentlemen, I think that you will, in this case, have but two matters to consider. I think you may dispense with any theory that this defendant committed the higher •crime of rape under the testimony in the case, and you will be left simply to determine whether it was by the mutual consent of the parties^ resulting from long acquaintance, and the very intimate relation that existed between them, upon a contract of marriage before entered into, or whether it was upon a promise at that time of a future marriage on condition that she would submit to his embraces. If you find the former, he is not guilty; if you find the latter, your verdict will be, ‘ Guilty.’ ” The errors assigned upon this record are the following: “ 1. The court erred in refusing to grant the requests submitted by defendant’s counsel, and in refusing to instruct the jury as stated in said several requests; that the refusal of each and every one of said defendant’s requests was error. The charge of the court, on his own motion, as a whole, was error. “3. The court erred in that part and portion of his charge where he charges the jury in relation to the crime of rape, because the same is contrary to law, and in this case misleading to the jury, and contrary to the evidence. “ 4. The court erred in taking from the jury in his charge the consideration of the question of rape. “ 5. The court erred in his charge wherein he instructs the jury as follows: ‘ I think you may dispense with any theory that this defendant committed the higher crime of rape.’ “ 6. The court erred in submitting the case to the consideration of the jury under the testimony in the case, as the evidence is not sufficient to support the verdict.” It is claimed that the assignment of error based upon the refusal to give the nine requests to charge is too general to be considered, and particularly as some of such requests were given and others were improper. The object of assignments of error is to point out specifically what is relied upon as error. This is accomplished by the first assignment, which in terms assigns error upon the refusal to give each and every one of defendant’s requests. This applies to each request separately, and no good reason is perceived for repeating each request in the assignments, which would only tend to prolong the record without lending any perspicuity to the • errors assigned. The second assignment of error is too general, and cannot be considered. The first request to charge was properly refused in the form in which it was asked. The testimony showed no other inducement or motive than a promise of marriage, except it might be the mutual desire of the parties; and this the court called the jury’s attention to, and told them, if they found that the act was done by the mutual consent of the parties to gratify their passions, the respondent was not guilty. The second request was covered substantially by the charge as given, as was also the eighth. The third and sixth requests were properly refused. The respondent was on trial for the offense created by the statute of seducing and debauching an unmarried female. Under this statute, the offense is committed if the man has carnal intercourse to which the woman assented, if such assent was obtained by a promise of marriage made by the man at the time, and to which, without such promise, she would not have yielded. People v. Millspaugh, 11 Mich. 278, 282, 283. The offense consists in enticing the woman from the path of virtue, and obtaining her consent to the illicit intercourse by promises made at the time. The evidence should be such as to satisfy the jury beyond a reasonable doubt upon these points. The promise and yielding her virtue in consequence thereof is the gist of the offense. If she resists, but finally assents or yields, induced thereto or in reliance upon the promise made, the offense is committed. Boyce v. People, 55 N. Y. 644. An act of intercourse induced simply by mutual desire of the parties to gratify a lustful passion would not constitute the crime charged in the information. The charge of seduction and debauchery implies that a pure woman will resist, and that the natural sentiment of virtue and of purity will be overcome by promise of marriage and other means, and submission to his desires finally obtained through such inducements. And it has been held that, when the female submitted through a promise of marriage conditioned upon the act resulting in pregnancy, the crime was committed. People v. Hustis, 32 Hun, 58; Kenyon v. People, 26 N. Y. 203. The requests last referred to leave out of consideration the concurrent influence of the promise of marriage as a pro-ducing cause of yielding assent, or, to use the language of the -request, in submitting to the act. The fourth and ninth requests were properly refused. The •crime of rape is not embraced in that of seduction; and it would be improper for the judge, upon a trial for seduction, to instruct the jury upon the law relative to the crime of •rape. Reynolds v. People, 41 How. Pr. 179. The judge, however, should charge that, if the jury should find that she did not assent to the act of intercourse, the offense was not committed. The respondent was entitled to -have his seventh request given. This request is not covered by the charge of the court, which was finally reduced to two 'propositions; namely, whether the act was done by the mutual consent of the parties, or whether it was upon a promise at that time of a future marriage on condition that ■she would submit to his embraces. He withdrew from the jury whether she gave no consent whatever, and the intercourse was obtained by force and compulsion. For this error assigned, the conviction must be set aside, and a new trial •ordered. It may be well, as there must be a retrial, to point out one ■ or two errors in the charge not specifically assigned as error. The attention of the jury was called to the fact that the people rested their testimony upon the testimony of the com■plaining witness, and that her testimony stood before them ■uncontradicted by any other witness in the case. He also told the jury that the fact that the complaining witness and the defendant had sexual intercourse on that day, in that ■township, was not disputed; and the jury might take that fact as established in examining the case. This was erroneous. 'The weight of the evidence, and the credit to be given to the testimony of the complaining witness, was a question exclusively for the jury, and it was error for the court to charge the jury that they should consider any facts testified to-by her as established simply because she had testified to them, and had not been contradicted. These facts which he directed the jury to regard as established were a part of the res gestee. The law presumed the respondent innocent of the crime charged until such presumption was rebutted and overcome by evidence; and the jury must weigh this presumption against her testimony, and ascertain what the facts are. Her testimony may have been of such a character or so contradictory as not to obtain any credit with the jury. Indeed, the judge told the jury that they had no conflict of testimony to reconcile except it was the conflicting statements of the complaining witness. Another error in'the charge appears. It is the duty of the trial judge, in a criminal case, to instruct the jury in reference to the presumptions of law applicable to the case before them, distinguishing those which are conclusive from those-which are disputable. The presumption of innocence is present in every criminal case; and he should instruct the jury to that effect, and that it stands good until overcome by evidence which convinces the jury beyond a reasonable doubt that the respondent is guilty. The charge of the court entirely- overlooks this presumption, and nothing was said upon the subject. Let an order be entered reversing the judgment, and granting respondent a new trial. The other Justices concurred.	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Morse, J. Action of ejectment for the possession of the undivided one-fifth share of 80 acres of land in Clarendon, Calhoun county. William J. Gatchell, the father of the plaintiff, died November 9, 1865, the owner in fee of this and other lands in the said township of Clarendon. He left surviving him his widow, Annie Gatchell, and five minor children. In his will, which was duly probated and allowed, he .bequeathed to his wife “four thousand dollars during her natural life, to be paid out of my estate, and after her death to be equally divided among my heirs.” He also directed the payment to his mother of $52 annually. He then devised 80 acres of land (no part of the land in controversy here) to three of his children, and the remainder of his estate he divided equally among his five children. It is under this clause of the will that plaintiff claims. One Benjamin Freddenburg was named as executor, and duly qualified as such December 18, 1865. The defendant claims under an executor’s sale of the land in question. The circuit judge filed his finding of facts and law, and rendered judgment in favor of the defendant. From these findings it appears that November 16, 1870, said executor filed a petition for license to sell real estate. Said petition alleged that the personal estate of the testator was practically exhausted, and that there remainded due and outstanding against said estate the sum of $800, debts of the testator, and about $500, estimated expense of administration, and that it was necessary to raise the sum of $1,200 from the sale of real estate; and prayed that the executor might be allowed to sell all the real estate, amounting in value, as alleged therein, to $8,800. December 31, 1870, a hearing was had upon said petition, upon proper notice by publication. The judge of probate adjudged that the debts and valid claims against said estate amounted to $800; that the personal property was insufficient to pay the same; and that it was for the interest of all interested in the real estate that it should all be sold. The license to sell was granted, and it was ordered that the executor take ■and subscribe the oath required by law before sale, but was ■silent respecting the filing of a bond, the printed provision for said bond being erased. The executor made sale on the eighteenth of February, 1871, of 220 acres, including the 80 in question, to George Born, for the sum of $8,800. Publication and posting notices ■of this sale were made as required by law. The oath on file was dated December 31,1871, and purported to be filed December 31, 187 — , the place for the fourth figure of the year being blank. The report of sale, filed June 29, 1871, shows that the oath was subscribed and taken before sale, such statement being in the printed portion of the blank used in making said report. June 29, 1871, the sale was confirmed, and on the same day .a deed was acknowledged by Freddenburg to George Born; the deed being dated February 18, 1871, and conveying the 220 acres of land. November 21, 1871, George Born and wife, by warranty ■deed, in consideration of $500, conveyed the land in controversy to the defendant, who at once went into possession of the same, and has ever since held the same, to the exclusion ■of plaintiff. Plaintiff was born October 10, 1861. Previous to the commencement of this suit she demanded of defendant that she be let into the possession of the undivided one-fifth of said ■premises, and such possession was refused by him. November 14, 1878, the final account of the executor was ■ examined and adjudicated by the probate court. An order ■of distribution was made, whereby the guardian of plaintiff and her brother was awarded the sum of $2,564.28, as their •share of said estate. The order recites'that all the heirs and parties interested in said estate were present, and consented to said order. The $8,800 received on the sale of said lands were credited to said estate, and formed a part of the amount in the executor’s hands at the time the order of distribution was made. The widow and children resided on the premises in question until September, 1869, when the widow remarried, and moved out of the State. The plaintiff and other minor children went with her. The probate court appointed commissioners on claims. They reported August 31, 1866, and allowed claims to the amount of $1,300. No evidence was given upon the trial of any other debt or debts filed or claimed against the estate, and the reports and accounts of the executor, made and filed before and after the sale, show the payment of no other debts by him than those allowed by the commissioners. • March 29, 1869, the executor reported under oath that all of said claims so allowed were paid, which report is recorded in the probate office. Soon after the executor received his said trust, he rented the premises to defendant, who entered upon them. In 1870, Born and defendant, both brothers-in-law of the executor, promised him that they would bid $40 per acre for the 220 acres at the sale. The land was appraised in the inventory at $8,800. No. bond was given on the executor’s sale. The probate proceedings upon such sale are made a part of the findings, and from them it appears that all the papers except the oath are properly dated. The notices of sale speak of it as an “administrator’s sale,” and were signed, “Benjamin Freddenburg, Administrator.” The deed is executed by said Freddenburg as administrator, and he so describes himself in said instrument. The said executor has not yet been discharged from his trust. His account shows that, after said sale, he paid the interest upon the legacy of $4,000 to the widow each year, and at the time of his accounting, in 1878, he held the said principal sum in trust for her. The counsel for appellant, in the oral argument, and in his brief filed in this Court, attacks the sale, and claims the same to be void— 1. Because the petition gave the court no jurisdiction to license the sale. 2. The license is void because the probate court found $800 •of subsisting debts against the estate, when in fact there were no debts. 3. Because on the face of the petition and license more land is asked and authorized to be sold than was necessary to pay the debts as fixed by the court. 4. For the reason that no oath was taken and filed before sale. 5. Because Born and Olney were not purchasers in good faith. 6. Because the sale was in fraud of the rights of the devisees. 7. Because no bond was given on the sale. 8. Because he did not sell or deed as executor, but as administrator. We will examine the alleged defects in their order. It is contended that the petition shows upon its face a sufficiency of personal property to pay the expenses of administration ; that it asks for more land to be sold than was necessary to pay the alleged debt of $800, and the expenses of administration; that the records of the probate court show the falsity of the statement in said petition that there is a •debt to that amount; that the statute of limitations had attached, and discharged the lands from all liens of debt, and liability of sale therefor; and also that the petition asks for the sale of devised lands, and more than was necessary to pay the alleged debts, and “ with a view to the distribution of the •avails thereof.” The petition shows upon its face that there is not personal property enough to pay the alleged debts, and we cannot inquire into the truth or falsity of the averments of the peti tion, or interfere with the adjudication of the judge of probate thereon. Palmer v. Oakley, 2 Doug. (Mich.) 433; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Id. 506; Woods v. Monroe, 17 Id. 238; Osman v. Traphagen, 23 Id. 80; Griffin v. Johnson, 37 Id. 90; Toll v. Wright, Id. 93. It is contended that it was not necessary to sell all the lands to pay debts and charges of administration, and it so appears from the petition, which estimates these debts and charges at §1,300, and asks for the sale of real estate valued at the sum of §8,800. It is claimed that there is no statute authorizing the sale of testate lands for the purposes of distribution. Section 6050 of Howell’s Statutes (section 4570, Comp. Laws 1871) provides, in substance, that the real estate of a testator may be sold, if personal estate is insufficient, to pay any legacy, or the debts and charges of administration, and that the real estate of an intestate may, in the discretion of the court, be sold for purposes of distribution. The petition in this case contained the following statement : “ And your petitioner further says that, in petitioning to sell all the real estate of said deceased, he does it with a view to the distribution of the balance over and aboye the amount necessary to pay the debts. ” The prayer is, however, confined to leave to sell to pay ■debts and charges of administration. We do not think the petition was void because of this statement. The petition was substantially in compliance with the statute, and, without this statement, only prayed for a sale authorized by the statute. But the license granted by the probate court authorized the sale of the whole 220 acres, and it was all sold to one purchaser, under such license, “for the purpose of paying debts, ■claims, interest, and charges,” and contains the following recital: “ And, it appearing to the court that it would be for the interest of all persons interested in said estate to have all the same sold,” therefore the sale is ordered, etc. It is argued that the order for the sale of all the lands was-made for purposes of distribution, and under the clause of section 6050, How. Stat., referring to the lands of intestates, and that the court had no jurisdiction to make such order in this case. It appears, however, that the $4,000' legacy to the widow had not been paid at the time of this sale, and was subsequently paid or held in trust out of the proceeds of such sale. The lands sold were, by the terms of Gatchell’s will, burdened with the payment of this legacy, if there was not sufficient personal property to pay it. At the time of the granting of this license a statute existed-(section 4551, Comp. Laws 1871, being section 6031, How. Stat.) authorizing the probate court, when it was necessary to sell part of the real estate, and by such sale the residue would be greatly injured, to order a sale of the whole estate. It is plain from the record in this case that it was necessary to sell this real estate, not only to pay the alleged debts and charges of administration, but this widow’s legacy as well, and that it was for the interest of all concerned that the whole estate be sold together. The legacy was paid out of the avails of the sale, and the balance accounted for and held for distribution by the executor ; and the final order upon the accounting shows that all the parties interested were present in person or by guardian,, and consented that the order of distribution be made, based upon such accounting, without any further notice. Under-these circumstances we shall hold that the license was a valid order, and, in effect, an order to sell the whole of the premises, to pay legacies, debts, and charges of administration, and that, under the statute above cited, it will be considered that the sale of the whole was justified, “ and most for the interest of all concerned.” We shall not avoid the sale for a mere technicality of expression, or a want of it, in the petition or license, when the ends really worked out and subserved by the action of the probate court come clearly within the statutes. How. Stat. §§ 6031, 6036. By our statutes the sale of any real estate by an executor, in an action by an heir or any other person claiming under the deceased, contesting the same, shall not be avoided on account of any irregularity in the proceedings, provided it shall appear— 1. That the executor was licensed to make the sale by a probate court having competent jurisdiction. • 2. That he gave a bond approved by the judge of probate, in case a bond was required upon granting a license. 3. That he took the oath prescribed by law before sale. 4. That he gave notice of the time and place of sale, as required by the statute. 5. That the premises were sold accordingly, and the sale confirmed by the probate court, and that they are held by one who purchased them in good faith. How. Stat. § 6076; Comp. Laws 1871, § 4596. We find the petition sufficient to confer jurisdiction upon the court, and also that such court did not exceed its jurisdiction in the license granted. Dexter v. Cranston, 41 Mich. 448; Blanchard v. DeGraff, 60 Mich. 107. We also find that the court had not lost jurisdiction by the lapse of time. Pratt v. Houghtaling, 45 Mich. 457; Church v. Holcomb, Id. 29; Larzelere v. Starkweather, 38 Id. 96. We cannot examine, in a collateral issue like the present, the finding of the probate court as to the existence of debts against the estate, or the amount of them. This objection has been disposed of in our discussion of the first point raised. It would naturally 1)6 suggested to the mind of any one, by the examination of the proceedings before and after sale, as shown by the files and records of the probate court, that the date of the oath, December 31,1871, was a clerical error, and that its real date was December 31, 1870. Testimony to this effect was admitted, and the court found that it was taken and subscribed of this date. Objection was made to the reception of the oral proof to establish this fact. We have no doubt of its competency. There was absolutely no evidence tending to show that Born and the defendant were not purchasers in good faith. On the contrary, they paid for the land all that it was considered to be worth, and the only thing urged against the lona fules of the transaction on their part is the fact that they agreed to bid $40 per acre if the executor would obtain license from the court to sell it. The sale, however, was properly -noticed according to law, and such agreements to bid are ■often secured before sale by executors and others at judicial sales. Such an agreement could not and did not interfere with others bidding higher if they so desired. We do not think the sale was in fraud of the rights of the devisees, nor that the testator intended, as claimed by the counsel for appellant, that these premises should pass to his children, and not be sold. By the terms of his will, and the condition and amount of his estate, his will, in which the first provision was the legacy to his wife, could not be carried out without such sale. The widow’s legacy could not be paid without resort to this real estate. This objection seems to me to be the most meritorious of any. How. Stat. § 6032 (Comp. Laws 1871, § 4552), provides: “ When the executor or administrator is authorized to sell more than is necessary for the payment of debts, he shall, before the sale, give bond to the judge of probate, with sufficient sureties, to account for all the proceeds of the sale that shall remain after payment of the debts and charges, and to dispose of the same according to law; and, in all cases where license is granted for the sale of real estate, the judge of probate may require a further bond from the executor or administrator when he shad deem it necessary.” In this ease the judge of probate, in his order granting the license, saw fit to require no bond, and struck out the printed provision for one usually found in the printed blanks for such orders. No bond was given. The counsel for plaintiff argues with much force that, it being admitted in this case that more lands were sold than were necessary for the payment of the debts and legacies, the bond should have been required by the judge of probate, and given by the executor, in order to confer upon him authority to sell; that the provision requiring such bond is plainly mandatory, and cannot be disregarded by the probate court; that the want of such bond goes to the jurisdiction, and is not a mere irregularity. But the statute (How. Stat. § 6076) does not provide that the bond must be given as required, by the statute. The second paragraph of that section reads as follows: “ That he gave a bond, which was approved by the judge of probate, in ease a bond was required upon granting a license.” It was intimated by this Court, in Drake v. Kinsell, 38 Mich., at pages 236 and 237, that this statute, in speaking of the bond as being “ required,” intended a requirement of the judge of probate when granting the license; and that, if none was directed by him to be given, the failure to give one cannot be a fatal defect. The point was not adjudicated, however, as it was not deemed necessary in that ease. In my opinion, this interpretation of the statute is the one most consonant with justice and authority. The neglect of the probate court to require a bond should not be allowed to affect the rights of an innocent purchaser under an executor’s sale in a collateral suit, after such sale has been duly confirmed by the probate court. The statute (section 6076, How. Stat.) was evidently framed for the purpose of protecting sales of this kind, as far as' possible, where the sale of the premises had been confirmed, and the lands are held by persons purchasing at such sale in good faith. It must be considered that the most liberal construction of the language, in favor of such purchaser, and against the heir, was intended. See Palmer v. Oakley, 2 Doug. (Mich.) 433, 495; Perkins v. Fairfield, 11 Mass. 226; Stall’s Lessee v. Macalester, 9 Ohio, 19; Ludlow’s Heirs v. Johnson, 3 Id. 553. The fact that Freddenburg deeded as administrator, instead of as executor, is a mere irregularity, which cannot affect defendant’s title. In this case the sale was, in all its proceedings, conducted in a fair and just manner by the executor. The premises were sold for a fair price, and every dollar accounted for by the executor. There can be no fault found with his management of the estate, or the execution of the trust. No one has been defrauded or injured in the least by this sale, or the disposition of its proceeds. It is sought, upon technicalities alone, to avoid the sale, and wrest from the purchaser one-fifth of the lands which he has held, occupied, and improved under the sale for over 12 years before the commencement of this suit. There is no merit in plaintiff’s claim, and courts should not favor the disturbing or destructon of titles obtained at executors’ or administrators’ sales upon mere technicalities, or the omission of acts, when such omission has caused no injury. The judgment of the court below is affirmed, with costs. Campbell, C. J., and Champlin, J., concurred. Sherwood, J., did not sit. See Blanchard v. DeGraff, 60 Mich. 107; Goodall v. Henkel, Id. 383.	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Morse, J. The respondent was tried and convicted in the recorder’s court of the city of Detroit of burglary. On the night of the twenty-sixth of April, 1886, about 3 o’clock in the morning, the house of John B. Moloney, in the city of Detroit, was broken into and entered, and several articles stolen therefrom, among them a gold watch and chain. The evidence against the respondent tended to show him in company with Thomas Powers that evening and early next morning, and with him at one place where Powers attempted to dispose of the watch stolen from Moloney’s residence, and also at one Rosenberg’s, where Powers sold the watch. George Marrow testified that he met Powers and Dow on Woodward avenue, and went to a saloon, where Powers asked him to buy a couple of tickets to Rochester, New York, in the presence of Dow, and said that he did not want to go down town because he was afraid he would be arrested; that he had been arrested in Detroit once before, and was afraid lie would be arrested again as a suspicious character, but they •couldn’t do anything with him but hold him for a couple of •days, and he wanted to buy the tickets for that week. Both the respondents gave him money, $15 in all, and Marrow took it, and went and purchased the tickets. Met Powers and Dow at a saloon afterwards, where arrangement had been made to meet, and gave them the tickets. This testimony as to what Powers said was objected to as incompetent as against Dow, who was having a separate trial. The evidence was competent. The occurrence was soon after ■the burglary, and Dow seems to have been equally interested with Powers in the purchase of these tickets, and the use of them. He was arrested at Rochester. The conversation was in his presence and hearing, and therefore admissible. The main objection and exception relates to the admission in evidence of the official record of the weather, as kept in •the office of N. B. Conger, signal officer in charge of the signal service station at Detroit. Mr. Conger was offered as a witness, and testified that he kept a record of the weather in his office, and had the official record with him. He was then asked to state the condition •of the weather on the evening of April 26, referring to such record. It was objected to as incompetent. Objection overruled. He then testified it was not in his handwriting, but was taken under his supervision. The fact of the record not being in the handwriting of the witness was then made the basis of another objection to its reception in evidence. The •court, after some hesitation, allowed the record to be put in evidence. On cross-examination it appeared that the witness left the signal office at 6 o’clock in the evening, and did not return until the next morning. When he went away, he left his assistant, Mr. Baldwin, in charge of the office. Did not know of his own knowledge that Baldwin or the other assistant remained in the office all night, but supposed one of them did. According to this record, the night of the twenty-sixth rain commenced by meridian time at 7:10 p. m., and ended at 9:30 p. m., and then commenced again at 9:51 p. ar., and stopped at 11:45 p. ar. On the twenty-seventh, beginning at. 7 a. i., the weather was clear. No observations were taken after 11:45 p. ar. This evidence was introduced in rebuttal of the evidence in regard to rain by the witnesses for the defense, whose testimony tended to show an alibi. The following questions were put to Conger on cross-examination: “ Q. Can you swear, of your own knowledge, that your-assistants took these observations on the night in question? “A. Yes, sir. “ Q. Of your own knowledge? “A. Yes, sir; I didn’t see them, of course. The observations are in their handwriting here in this original record.”' The counsel for the respondent argues that this record, not being made by the witness himself, and the persons who¡ made it not being sworn, and there being no certainty that they went outside of the office-and took the observations recorded by them, is not admissible in a criminal cause. He contends that the admission of such record is in violation of' the constitutional provision that the accused shall have the - right to be confronted with the witnesses against him. We-have heretofore held that this provision does not apply to the-proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a>. copy officially certified. People v. Jones, 24 Mich. 225. But. that is not this case. This Court has also held that market. reports, and the records of the weather as kept at the asylum, at Kalamazoo, were properly admitted in civil cases. Sisson v. Cleveland & T. R. R. Co., 14 Mich. 489, 497; De Armond v. Neasmith, 32 Id. 231, 233; Cleveland & T. R. R. Co. v. Perkins, 17 Id. 296. The record of the weather in this case was not one made-by the witness, or one that he knew certainly to have been accurately made in accordance with the actual state of, the-i weather. It seems to me that the presumption in favor of the correctness of this record, because it is an official one, if such presumption can be said to exist under the circumstances shown as to the manner of the observations being taken and the record being kept, cannot be used against the respondent in a criminal case. It was a vital question upon the trial whether the testimony looking towards an alibi was true or not, and the condition of the weather that evening was important in aiding the jury in their determination of that question. If Conger had made the record himself, or taken the observations himself, the evidence would have been competent; but the respondent was entitled to have the testimony of Baldwin, or the assistant who took the observations and made the record of the same, and to be confronted with such witness. As it was, the presumption arising from its being an official record only saved it from being hearsay testimony. This official statement or record of the weather, though required to be kept, and therefore an official document, is not, however, a record of facts which can only be proved by the original, or a properly certified copy. The facts therein stated are facts open to the observation of anybody, and capable of being established satisfactorily by oral testimony, or minutes kept by a private person, if such minutes refresh his recollection. The record ought not to have been introduced in evidence without the presence of the man who made the observations and the record, on the stand, so that the accuracy of such Tecord could have been inquired into. For this error the judgment must be reversed, and a new trial granted. The other Justices concurred.	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Campbell, O. J. Goldsmith brought into the circuit court for the county of Oceana a justice’s judgment, which-was affirmed. He brings error on the affirmance. The suit was commenced by attachment, which seems to have been regular, but not personally served. On the return-day plaintiff appeared by attorney, and, defendant not appearing, the case was adjourned for 30 days. In the meantime a motion was made before a circuit court commissioner to dissolve the attachment under the statute, and he made an order dissolving it, from which Churchill appealed. Pending this appeal, the case came on at the adjourned day before the justice, and he gave judgment for plaintiff. As the statute positively requires an adjournment when the defendant is not personally served and does not appear, we do not think it of any importance in what way the plaintiff appeared on the return-day. On the adjourned day we must assume from the docket that the appearance of plaintiff was ■ regular. If so, the only question left is whether the pendency of proceedings for dissolution had any effect on the action before the justice. We can find nothing in the statute which provides for any such interference with the main suit. Where there is no per- ■ sonal service, the attachment judgment can only bind the property, and, if the attachment should be ultimately dissolved, of course the judgment must fall with it. But these proceedings may easily last long enough to oust a justice of' jurisdiction, and might therefore be resorted to for delay, to the detriment of right, if they suspended the main action. Th e statute does not provide for any such suspension, and the main issue, on the merits, would not be affected by anything which would be litigated on the motion to dissolve. There is no provision which compels or authorizes the justice to take notice of these collateral proceedings, until brought before him in some responsible shape, and this was not done in the present case. But, had it been, they would not have barred his action. "We see no error in the record, and the judgment must be affirmed. The other J ustices concurred. The docket shows plaintiff’s appearance on the return-day by his • attorney, but contains no statement that the attorney swore to his • authority to so appear. The docket entry is as follows : “ June 30, 1886, 10 o’clock A. M. 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Champlin, J. The bill of complaint in this cause was filed by Chauncey Curtiss, since deceased, in which he stated that on and prior to January 19, 1884, he was seized and possessed in his own right, in fee simple, of lands situated in the county of Kent and State of Michigan, described as follows: Lots 1 and 2 of block 1 of Canton Smith's addition to the city of Grand Kapids, also the south-east quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, township 8 north, rangell west, excepting 20 acres off from the north end of said west half of the north-east quarter. That on said nineteenth day of January, 1884, he agreed to sell to Sarah Outhouse, upon the terms and conditions hereinafter expressed, the aforesaid lands and premises for the purchase price of $4,637.50, and she, in consideration thereof, agreed to make, execute, and deliver, immediately upon the delivery of the deed by him to her, a mortgage upon the aforesaid premises, except lots 1 and 2, to secure to him the payment of the aforesaid purchase money, and pay the same, and in pursuance thereof he did, by deed bearing date the nineteenth day of January, 1884, duly executed and delivered to said Sarah Outhouse, convey said premises to her, and thereafter, on the twenty-ninth day of September, 1884, she caused the deed to be recorded in the office of the register of deeds of Kent county, in Liber 157 of Deeds, at page 437. That she has not, nor any one in her behalf, paid him the said sum of $4,637.50, the purchase price of the premises, nor any part thereof, and the same remains due and unpaid, and that she has, at all times since the execution of'said deed by him, refused and neglected, and still refuses and neglects, to pay him the purchase money aforesaid, and still refuses to execute and deliver to him a mortgage upon said lands as security for the payment of the purchase price in pursuance of her said agreement so to do. That he is advised that the purchase price is a legal and equitable lien upon the aforesaid premises; and avers that, since the execution and delivery of the deed, the defendant Sarah Outhouse has, in fraud of his rights, executed a mortgage upon the said premises to one William Scott, as security for the payment of the sum of $1,000. The bill prays that the purchase money, $4,637.50, may be declared a lien on said lands in favor of the complainant, namely, upon lots 1 and 2 of block 1 of Canton Smith’s addition to the city of Grand Rapids, also the southeast quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, township 8 north, range 11 west, excepting 20 acres off from the north end of said west half of the north-east quarter of section 11, to secure the payment of the purchase money and interest; and that Sarah Outhouse be decreed to pay complainant $4,637.50, with interest from January 19, 1884, on a near day to be fixed by the court, and,'in default thereof, she, and all persons claiming under her by conveyance or otherwise; be barred and foreclosed of and from all equity of redemption, and fora sale of the premises to satisfy the amount found due; and that she be decreed to pay the balance or deficiency, if any exists, on such sale. The defendants answered separately, the defendant Scott by plea claiming to be an innocent mortgagee in good faith; and this fact was admitted by the record, and a decree entered in his favor for costs. The defendant Sarah Outhouse admits that complainant was the owner in fee simple, and was seized and possessed of his own right, of the lands and premises described in the bill of complaint; denies that on the nineteenth of January, 1884, or at any other time, upon the agreements or condi tions expressed in the bill of complaint, he agreed to sell to her the said lands for the purchase price of $4,637.50; and denies that she then and there, or at any other time, agreed to make, execute, and deliver, immediately upon the execution and delivery of the deed, or at any other time, a mortgage upon said lands, except lots 1 and 2 aforesaid; denies that she ever in any manner agreed to pay the same, or any part thereof; admits the execution and delivery of the deed to her, and the recording thereof, but denies that complainant conveyed said premises to her in pursuance of the alleged agreement set forth in the bill of complaint, and denies that complainant has á legal or equitable lien upon the premises for the alleged purchase price. She admits the mortgage to Scott, but denies that it covers lots 1 and 2, and denies that it was executed in fraud of complainant’s rights. She then sets out that said Chauncey Curtiss is her father and in the eighty-ninth year of his age; that the deed to her by him was made partly as a gift, and partly in consideration of care and nursing bestowed upon her mother, board and washing, mending and work, done for her father, and to place her upon an equal footing with her brothers and sisters, whom her father had assisted; that no money consideration was mentioned or talked of, and no .mention was made of any payment or mortgage security therefor. “ She avers that said complainant never claimed payment from this defendant for said lands and premises, nor ever mentioned the subject of payment by her, nor any mortgage to be given by her upon said lands and premises, until about the twenty-second day of September, 1884, when he told her he wanted a mortgage on the farm, meaning the lands and premises aforesaid except said two lots, but did not state any amount; that this defendant then told him that she would not give any mortgage, as the understanding between them was that she should have the property clear; that said complainant said nothing more at that time upon that subject, but returned a week later, and asked this defendant if she was going to give him a mortgage on that farm; that this defendant answered him, ‘ No,’ and told him again that the understanding was that she was to have the property free and clear, and that, if she couldn’t have it so, she would give hini back the deed if he wanted it. Complainant replied: ‘ No; you keep it. Keep what you have. There is a certain one who wants to ruin your husband.’ This defendant then told him that she would either put the deed upon record or return it to him, and complainant again replied, £ Keep it, and put it on record,’ and then went away, parting with this defendant in a most friendly and satisfied manner, and never again, directly or indirectly, referred to the matter to this defendant prior to the commencement of this suit. “ This defendant, further answering, states that sometime last spring, or in the early part of summer, she' informed complainant that she had been trying to negotiate a loan upon said lots 1 and 2 for the purpose of erecting a building thereon, and complainant then offered to loan her the money, and take security for the same on said lots, and did from time to time, as her work of building progressed, loan her such sums as she required, until about the completion of said building, when he settled with this defendant the amount so loaned, and took her mortgage upon said lots for the aggregate so loaned, namely, the sum of $1,120, and did not set up any claim of lieu upon said lands at any time, on any of their meetings, in regard to said loan, or the mortgage given to secure the same, but during the whole time treated this defendant as the absolute owner thereof; and that said complainant has never, prior to the commencement of this suit, made any mention to this defendant of any other mortgage upon said premises, except, as hereinbefore stated, at the two interviews in September, 1884; and this defendant positively avers that the conveyance to her of said premises by said complainant was not upon nor for any other consideration than that hereinbefore stated and averred.” The 'cause was heard upon pleadings and proofs, and a decree entered therein that Chauncey Curtiss, in his lifetime, and on the nineteenth of January, 1884, agreed to and with the defendant Sarah Outhouse to sell and convey to her the south-east quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, except 20 acres off of the north end, in the township of Plainfield, Kent county, Michigan, and also lots numbered 1 and 2 of Canton Smith’s addition to the city of Grand Eapids, in said county, for the price of $2, 785.15, to be paid by her to him upon the execution of a good and sufficient deed by Chauncey Curtiss to her, and that she agreed to pay him the said sum of $2,-785.15 therefor; that he executed such conveyance on that day, and she did not pay the purchase money, and has not paid it, but refuses to do so; that complainant had no other security therefor than a vendor’s lien, which it was decreed he had, and unless the said purchase price was paid by the fifteenth day of August, 1886, the premises, or so much thereof as should be necessary, should be sold to raise the said amount; that the premises on section 11 be first sold; and that defendant, and .all persons claiming or to claim from and under her, be forever barred from all equity of redemption in the premises sold. The vendor’s lien upon sale of real estate has always been recognized in this State; the earliest reported case being that of Carroll v. Van Rensselaer, Harr. Ch. 225. The doctrine, generally stated, is that the vendor of land who has taken no security, although he has made an absolute deed and acknowledged the receipt of the purchase price, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it, which will be enforced in equity against the vendee, volunteers, and all others claiming under him with notice; that is, against all persons except Iona fide purchasers without notice. The equity arises independent of contract, and it is therefore immaterial that the seller had no intention to reserve such a lien. 2 Sugd. Vend. & P. 675. And if the purchaser alleges that the lien does not exist, for any reason, in a particular case, the burden is on him to show the circumstances which repel the presumption of its existence or rebut the equity. 4 Kent, Com. 152; Garson v. Green, 1 Johns. Ch. 308; Gilman v. Brown, 1 Mason, 191, 213, 214; Schnebly v. Ragan, 7 Gill & J. 120, 125; Tompkins v. Mitchell, 2 Rand. 428, 429; Allen v. Bennett, 8 Smedes & M. 672, 681; Camp bell v. Baldwin, 2 Humph. 248, 258; Manly v. Slason, 21 Vt. 271. But when a vendor resorts to a court of equity to declare- and enforce his lien, it is necessary that he allege the contract of sale with reasonable certainty, and that the consideration and terms of payment must be alleged and clearly proven; otherwise the court has no data for the enforcement of the lien. Mowrey v. Vandling, 9 Mich. 39. The bill in this case alleges a sale to the defendant Sarah Outhouse, for the purchase price of $4,637.50, on the nineteenth of January, A. D. 1884, and that a mortgage was to-be executed by her immediately upon the execution of the deed; but no time or terms of payment áTe stated or set forth in the bill of complaint. The proof fails entirely to-substantiate the claim made by the bill that the purchase price agreed upon was $4,637.50. Complainant testifies that it was to be the amount of indebtedness due him from George H. Outhouse, which he testifies was $3,953.15, and the amount found by the decree of the circuit court was $2,~ 785.15. Complainant’s counsel has made and presented a computation, based upon the testimony, from which he claims that the purchase price was $3,137. The statements contained in the bill and answer afford no information of what the transaction between the parties really was, as developed by the testimony. The principal witnesses were the complainant, Chauncey Curtiss, the defendant Sarah Outhouse, and her husband, George H. Outhouse. It appears that in 1873 George H. Outhouse gave to Chauncey Curtiss a mortgage upon 80 acres of land to secure-the payment, in four years, of $1,750, with interest at 10 per cent., being for part of the purchase money of the premises mortgaged; that subsequently Mr. Outhouse purchased 20 acres more of land adjoining, and lots 1 and 2, block 1, of Canton Smith’s addition to the city of Grand Rapids, all of which he owned on the nineteenth of January, 1884; that on that day, by a deed bearing date the first day of January, 1884, but executed and delivered the nineteenth of January, Outhouse and his wife, Sarah, conveyed the lands known as the farm in Plainfield to Ourtiss. Upon 80 acres of this farm, as before stated, Ourtiss held a mortgage for the purchase price executed by Outhouse, and the conveyance by deed from Outhouse and wife to Ourtiss covenanted that the lands were free from incumbrance, except this mortgage. By another deed, executed the same day, Outhouse and wife conveyed the two lots upon Canton Smith’s addition to Curtiss. These deeds were placed upon record immediately. On the same day Curtiss executed and delivered to Sarah Outhouse a deed of the land covered by both deeds to him. This deed was in effect a quitclaim, containing a covenant simply against his own acts. Mr. Ourtiss, a witness in his own behalf, testified to the transaction substantially as follows: “George came to me, and he says that he got into a little trouble, being in company with my son James. He says there is 20 acres on the west side of the road, not in my mortgage, and he said they were going to put onto him for James’ individual debts, — he signed a note, I think, for a wagon, I think, and some other things, — and that they would make him pay. He signed it as company, and he had no concern in it. 'Now,’ said he fI want you to transfer that over, and, if there is anything left for Sarah, to save it for uer.’ isaid: ‘ I am not going to undertake to cheat anybody at all. If I can have my pay, that is all I want.’ He said: ‘ You give me a deed of the place, — give her a deed of ■the place, — and she will give you a mortgage back.’ ” That he (Outhouse) was to give him a deed, and he was to give her a deed; that the deeds were to be both alike, but that he now finds that the deed from him to Sarah Outhouse makes no mention of the mortgage, which it should have done; that the agreement was that she should give him a mortgage back for the amount .that was due from Mr. Outhouse to him; that the reason why the mortgage was not executed at the time was, Mr. Outhouse wanted to sell his place, and he agreed to wait until he had a chance to sell it; that there was no figuring up to ascertain the amount that was due him at this time, and Outhouse agreed that he would not put the deed upon record until after they had settled up; that he waited about six months, and they did not settle, and he urged them to give him a mortgage, and finally, upon a Friday, he told them it must be settled before the next Tuesday, and in the meantime they put the deed on record; that his whole talk about deeding the place to Sarah Outhouse, and taking back a mortgage, was with George H. Outhouse; that he never had any talk with Sarah about deeding the place to her, and he does not remember that he ever said anything to Sarah about her giving him a mortgage. He testified : “ I had a mortgage. When I bought the place there .was 80 acres east of the street, and 30 west; that made my 100 acres that I bought. Mr. Dunton sold 30 acres to Mr. Childs; he bought 30 acres that did not come into my deed. And Mr. Outhouse, when he bought it, Mr. Dunton deeded it to him, —them 30 acres that I didn’t have a mortgage on; and Mr. Outhouse says to me, — George Outhouse says: ‘ There is 30 acres there that they will put onto me to pay Jim Curtiss’ debts, — company debts, — and I had no concern in it;’ and he wanted to secure that away, so that they would not get it away from him for nothing.” That the property upon which he was to have security was the 100 acres. It was to cover nothing but the farm. He testified, further, that, in addition to the mortgage debt which he held against George H. Outhouse, he (Outhouse) agreed to secure him for a debt which was formerly represented by a note signed by one Loomis, which Curtiss had bought of one Housel, and which Curtiss had let Outhouse have to use in a purchase of property which he and James Curtiss made from Loomis. The note was dated March 37, 1873, for $400, and interest at 10 per cent. He also testified that after the deed was given — but the date he is unable to tell — Mr. Outhouse figured up the amount he owed him, and he (Curtiss) made a memorandum of it, and at that time the mortgage amounted to $3,500, and the Loomis note to $453.15. He says that there was no note or other personal obligation for the sum secured by the mortgage from Outhouse to him; that at the time the,deed was executed they had not reckoned up; that it was their agreement that the deed that he gave her was not to be put upon record until they had reckoned up; that there was nothing said how long the mortgage was to run, nor the rate of interest it should bear, nor whether it was to be paid in one or more installments ; that Mr. Outhouse did the whole business; that Outhouse did not tell him that he was acting for Mrs. Outhouse, neither did she tell him so in particular, but she acquiesced in everything that was done. Question hy Mr. Uhl. “ You say the mortgage she was to give was to include the 20 acres as well as the other land ? “A. He said he wanted to save that 20 acres for her to keep from paying unjust debts. “ Q. So that the mortgage was to cover the land that was in your old mortgage, and the 20 acres? “A. Yes, sir.” The above is substantially the version of the transaction as given by Mr. Curtiss. He was, at the time his testimony was taken, about 87 years of age, and his evidence shows that his memory was somewhat weak and defective, but, considering his advanced age, it was remarkably clear and retentive. There is no intimation that his intellect was enfeebled to that degree that he was not fully capable of transacting business, nor is it claimed that any fraud or unfair advantage was practiced upon or taken of him in the transaction narrated. What plainly appears from his testimony is this: His son-in-law, Mr. Outhouse, was the owner of- 100 acres of land in Plainfield, and two lots in the city of Grand Eapids. The two city lots and 20 acres of the Plainfield farm were unincumbered, and 80 acres were incumbered by a mortgage held by complainant. The son-in-law became embarrassed, and, in order to place his property beyond the reach of his creditors, he gave a deed of the lands, without consideration, to his father-in-law, and he, without consideration, conveyed the same lands to his daughter) the wife of his grantor. He now asks that he may have a vendor’s lien declared and enforced in his favor for the amount of indebtedness from the son-in-law to him at the time of the transfer. The transaction was tainted with fraud, and, under such circumstances, courts of equity leave the parties where they have voluntarily placed themselves. Nor is the transaction relieved of its fraudulent character by the claim that the purpose was to evade the- payment of an unjust debt, in which the son-in-law claimed to havé no concern. Such claim is always made by a failing debtor as an opiate to quiet the conscience for committing the wrongful act. The testimony in the record shows that, after the deeds were made, creditors levied upon the property, or portions of it, as the property of Mr. Outhouse; and, if this case was a proper one for the enforcement of a vendor’s lien, it would be a question requiring consideration whether such creditors should not have been made parties, and how far their rights would be affected in a proceeding to enforce such lien. There are other difficulties in the way of supporting the decree m ade in the court below arising upon the case as made by the complainant’s proofs. The bill of complaint asserts that Sarah Outhouse agreed to pay the purchase price of \|4,-637.50, and asks for a personal decree against her. Complainant shows by his proof that she never agreed to pay such purchase price, or any price, for the land conveyed; that there was no agreement made with Outhouse that he should be discharged from his obligation to pay the debt which he owed to Curtiss, and that his wife should assume it or become liable for it. The bill asks, and the decree grants, this result; but it is entirely unsupported by the proofs. The bill also states that the agreement was that the purchase price should be secured upon the 100 acres of land, and the city lots were not to be included in the mortgage. Yet it prays, and the decree grants, a lien for, the purchase price upon both the city lots and the 100 acres. This is also entirely unsupported by any proof in the case. The testimony of the complainant, Curtiss, shows that after the execution of this deed he loaned his daughter, Sarah Outhouse, from time to time, during the year 1884, and before the commencement of this suit, sums of money to build upon these lots, and that he took from her a mortgage' to secure the sum of $1,120, so borrowed, covering these city lots; and this he did without making any claim that he had a lien thereon for the purchase price. These circumstances, taken in connection with the others attending the transaction out of which the conveyance to her was made, strongly repel the inference that a vendor’s lien exists in favor of complainant, Curtiss. Sarah Outhouse was produced as a. witness in her own behalf, and gave her version of the affair as follows: That Mr. Curtiss came to her house, and asked her if she knew of a note being given by her brother and signed with her husband’s name without his knowledge and consent; that she told him she did, and he asked her what Mr. Outhouse would do about that, and she told him that she did not know; that he told her that he must not do anything about it; that he had reasons for protecting her brother. He told her then that she should have the deed of the place; that he would give her the deed of the place if she could make the bargain with her husband, — if she could persuade him in any way not to trouble Mr. James Curtiss; and the further consideration was what she had done for him and for her mother when they were living with her ; “ that she should have the deed of the place free and clear was the very words used.” He said he had given to the older daughters, her three older sisters, and he had never given her anything; that he had helped those three, and had not her; that he never mentioned anything about her giving him a mortgage on the farm, and she never agreed to give him one; that at the time the deed was given to her, or prior thereto, no money consideration was spoken of as to the price to be paid for the farm. It quite plainly appears from her testimony that she and her husband fully understood the occasion and the reason for placing the title of the premises in question in her name; and I am satisfied that while, in one sense, she might understand that it was intended as a gift to her, yet she was quite well aware that it was a gift made at the expense of her husband’s creditors, and for the purpose of placing the property beyond their reach. The explanation she makes of why the deed was to be kept off the records is not very satisfactory. It is proper to say that Mr. Chauncey Curtiss was recalled, and- denied positively the testimony of his daughter Sarah, and denied that he executed the deed with the intention of giving the farm to her. He again asserted that his agreement was made with Mr. Outhouse; and, as his testimony is given in a more connected manner than when he was first produced, I quote from his testimony. He was asked to state his conversation with Mr. Outhouse, and he testified: “ He came to me, and said that there was going to be some trouble about some land that has been testified to all over, and he wanted I should take a deed. It would not do, he said, for him to give a deed directly to her. Is that the law? “ Q. Never mind; just testify. “A. He would give a deed of that 20 acres in addition. I had a mortgage on the land, all but the 20 acres; and he would give the deed to me, and I was to give the deed to her, and she was to give me a mortgage back on it; and, in regard to that, he requested me never to say a word to her about it; and she and I never had a word of conversation about it until we got into the buggy to come down and make out that deed; and we came down, and it was made out by that man. I suppose he agreed to do it all so, and so I trusted him to do it. “ Q. Who do you mean by £he?’ “ A. Mr. Outhouse. He mentioned there was going to be trouble, and I told him I didn’t know anything about it. I knew that there was trouble growing. “ Q. What conversation did you have with her, if any, the day that you came down to have the deed drawn, in the buggy? “A. I don’t remember that there was a single word said about it, only coming down to make out the writing. He agreed to do all this business, and she should give me a mortgage back, and I supposed it was all right; and I went in a number of times, and asked to have a settlement; and the last time — very nearly two years, I guess, I kept going; I wanted to settle up my business — on Friday, I went in. I said, * Sarah, this must be settled up before Tuesday; I am not going to wait any longer.’ She said once before that, ‘Hadn’t you as lief have the money as to have a mortgage?’ —keeping me off, he was about selling it. I said, ‘Yes.’ I said, ‘I will give you a deed back. You shall have it for $500 less than it amounts to if you will pay the money,’— because I had rather have what he owed me than the place by $500. I didn’t want it. Once he could swap it away. He had a bargain made. He was going to take a place in the Eapids, up there, and I said, ‘ If you will take that place,— they asked him $1,500 to boot, — I will take that place off your hands, and allow you $1,600 on what you owe me.’ “ Q. That was before Mr. Outhouse deeded it to you? “A. Oh, yes; nearly a year.” Mr. Outhouse gives his version of the transaction, in answer to questions of counsel, as follows: “ Q. What was that agreement? “ A. That agreement was that I owed him, and I wanted to pay him. He wanted me to straighten it up, and I had got into a little trouble, and I told him I wanted to convey that farm to him, and also the lots; that I wanted him to hold the deed of the farm, and to convey the two lots to my wife. “ Q. Is that all ? State the whole fully. “A. And I did convey the property to him. I gave him a deed of the farm; and also a deed of the two lots. “ Q. The same conveyance all in one deed? “ A. No, sir; separate deeds. “ Q. What was the consideration of the deed of the farm from you to him ? “ A. I think— “ Q. Or what was the talk about that between you and him? “A. I had always asked $4,500 for the farm, and I think that was the consideration. “ Q. What talk did you and he have? . “A. There was not any talk in regard to the value of the farm, only I told him— “ Q. What talk did you have about the entire transaction? How came you to deed it to him, and what was your talk about' the whole transaction? “A. I told him I wanted to deed him the farm and the two lots; and he says, ‘ There is more in the farm than is coming to me.’ Well, I told him then he knew what he could do with it. I wanted him to deed the two lots to my wife. Q. Did you hear Chauncey Curtiss’ testimony in this case? “A. No, sir. “ Q. He has testified as follows: ‘ George came to me, and he says that he got into a little trouble, being in company with my son James. He says there is 20 acres on the west side of the road not in my mortgage, and he said they were going to put onto him for James’ individual debt, — he signed a note, I think, for a wagon, 1 think, and some other things, —and that they would make him pay. He signed it as company, and he had no concern in it. “Now,” said he, “I want you to transfer that over, and, if there is anything left for Sarah, to save it for her.’” Do you remember any such conversation, in whole or in part? “A. I told him that I had got into some trouble, and there was several notes out that I didn’t want to pay; and I says, ‘You want this straightened up now, and I will deed you that farm;’ and he says, ‘There is more in that farm than is coming to me.’ I said, ‘You know what you can do with it.’ I said, ‘ You can fix that;’ and I says, ‘Furthermore, I want to deed you those lots, and I want you to deed those back to my wife, and you can keep the deed of the farm yourself.’ ” The witness also testified that he was not' aware that Mr. Curtiss had conveyed the whole property to his wife until after it had been done, and nothing, -was ever said about giving a mortgage back, or by his wife, to secure the debt he ■owed Mr. Curtiss. His testimony upon cross-examination is quite significant ■of the object and purpose of these conveyances. I quote from his testimony. “ Q. Who first spoke about your deeding this farm to him at the time you made the deed, in January, 1884? “A. I think I did. “ Q. Where was the conversation? “ A. If I am not mistaken, I think he was riding down town with me in the buggy. “ Q. When was that? “A. That was either in November of 1873, I think, or 1883. I get these dates a little mixed. “ Q. What did you say to him? “A. I told him that I was getting in trouble, and I told him the whole circumstances. “ Q. Go on. I want to know what you told him. “A. I told him that I wanted to deed him that farm, and I also wanted to deed him the two lots. At first he kind of •shook his head, and didn’t know, and I told him about it. “ Q. I don’t ask you that. I ask you what you told him. “A. I told him that I wanted to deed him those lots and the farm. “ Q. You said you told him the circumstances. Repeat what you told him. “ A. I told him that I wanted to deed him the farm, and I told him about that note, and I heard of one or two others the same— “ Q. What did you tell him? “A. I says: ‘You.can take a deed of that farm, and hold it.’ “ Q. You say you told him about that note." I ask you what yon told him. “A. Iam trying to tell you. “ Q. You are not answering the question when you say you told him about the note. What I want yon to do is to quit this, and do just as you were when you were talking to him, and tell us what you said to him. When you say, ‘1 told him about the note,’ it don’t answer my question. Go on and tell all you said to him. “A, I told him that I wanted to deed him — give him a deed of — the farm and the two lots; that is what I told him» “ Q. Is that all? “A. And that I wanted he should deed the lots back to my wife. “ Q. Is that all? “A. And I wanted him to hold or keep the deed himself; and he says: ‘ There is more in the farm than there is coming to me. What shall I do with it?’ I said: ‘You can Bx that yourself; do just as you are a mind to.’ Now, that was the conversation. “ Q. Was that all of it? “A. That was about the substance of it. “ Q. Is that all you can now remember? " A. It is all I remember now; then we talked about other things. “ Q. Is that all you now remember? “A. All I remember now. “ Q. What did you mean a moment ago when you said you explained to him the circumstances? “A. I was then referring to that note. “ Q. Let’s have what you said to him about that note. “ A. I was telling him about what those notes were, and what those parties that held the note had said to me. “ Q. What did you tell him? “A. I told him I should be sued on them, and they would levy on that 20 acres; and I says: ‘Your mortgage does not cover the 20 acres, but I will have to pay somebody’s else debts out of that 20 acres of land, and I don’t want to.’ That is the conversation that I told him. “ Q. You have said ‘I told him about those notes.’ I don’t know what you mean by ‘ those notes. ’ What did you say to him about the notes? “ A. I told him there was some notes out, signed by the firm name of J. A. Curtiss & Co., that I had nothing to do with whatever; they were given for something else outside of the business. “ Q. What notes did you speak about? “A. The Fitch note. “ Q. How much was that? “A. I think $110 and something. “ Q. That was signed J. A. Curtiss & Co. ? “ A. Yes. “ Q. Given by whom? (‘A. Given by a man named Starr to J. O. Fitch, and indorsed by J. A. Curtiss & Co. “ Q. Who compose the firm of J. A. Curtiss & Co. ? “A. J. A. Curtiss and myself. “ Q. And you told him you wanted to convey that farm to him that the mortgage covered, and 20 acres you had that the mortgage did not cover, and those lots on South Division street? “ A. Yes, sir. “ Q. You say he shook his head. Why did he shake his head? What objection did he make? “ A. He didn’t make any objection, only he just shook his head; that was all. “ Q. Didn’t he say that he would not take any conveyance if there was anything wrong about it, or something of that kind? “A. No. “ Q. You told him these notes were not for you to pay, didn’t you? “A. Yes, sir. “ Q. Were J. A. Curtiss & Co. embarrassed at that time? "A. 'Yes, a little; I guess they were a little. “ Q. Afterwards a good deal, weren’t they? “A. Yes. “ Q. Was the farm levied on? “A. It was after the transaction was made. “ Q. After the transaction, — after the deed was made to the complainant? “A. Yes, sir. “ Q. It was not levied on, on a judgment rendered on any of these notes either, was it? “A. No, sir. “ Q. What did he say when he shook his head? “A. He didn’t say anything. “ Q. When you made that proposition to him, — made that statement to him, — did he say he would not go into anything that would cheat anybody at all; if he could have his pay, that was all he wanted ? “ A. No, sir; he didn’t say any such thing to me. “ Q. Nothing of the kind said? “ A. No, sir.” From the whole testimony it is apparent that Outhouse conveyed the lands in question to his father-in-law, and he to Sarah Outhouse, to place them beyond the reach of the creditors of Outhouse; and, under such circumstances, the vendor has no lien that can be enforced in equity. In Palmer v. Sterling, 41 Mich. 220, the facts indicated that the note put in evidence was dated back to the time of the sale of the land, and taken so as to furnish color to the transfer as a valid sale of land in case any trouble should arise as to creditors. The daughter in that case claimed that the deed was an unconditional gift. The Court said: “All the authorities rest upon the basis that the land was actually sold for an agreed consideration, payable at all events, and payable as the purchase price. Unless there was a sale for a' price, there could be no such relation as that of unpaid vendor and responsible purchaser. The lien can only exist as collateral to a debt which was a part of the transaction, and created simultaneously with the sale.” The authority of that case should dispose of this. Here was no agreed consideration, payable at all events, and payable as purchase price. The debt now claimed as purchase price, owing from a person other than the vendee, was not created simultaneously with the sale; and it was held in Weare v. Linnell, 29 Mich. 226, that,— “A person cannot become a purchaser by a transaction of which he is wholly ignorant, nor can there be, as against him, a vendor’s lien for a purchase price which he never agreed to pay.” The circumstances must indeed be exceptional that will create a vendor’s lien against a vendee who has never agreed to pay any purchase money. I do not see how it can exist upon the complainant’s testimony and proofs, relieving it of any intentional wrong-doing, and giving it the most favorable construction. It was said upon the argument by defendants’ counsel that the complainant was not remediless; that the mortgage given bv Outhouse to Mr. Curtiss upon the 80 acres has never been discharged, and was not merged in the deed to Mr. Curtiss. The question is not before us upon this record, and calls for no discussion. I think the decree of the circuit court should be reversed, and the bill of complaint dismissed, with costs of both courts. The other Justices concurred.	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Campbell, C. J. Plaintiff sued as beneficiary named in a benefit association certificate issued to one Maggie Gibbons in April, 1883; the amount having, as claimed, become due on the death of the person who became a member when the certificate issued. The defense rested chiefly on two grounds,— one being that plaintiff was not so related to the decedent as to be entitled to take the benefit, and the' other that the deceased, on securing membership, misrepresented her age by about 10 years. The court below directed a verdict for defendant. The company sued was not organized under the laws of Michigan, and we have no means from the record of knowing whether the restrictions put by our laws on the relationship of the members and beneficiaries exist in the state of Indiana, where the company was formed. As the certificate is payable to plaintiff, and as no particular stress seems to have been laid on this point below or here, we need not consider it. It is evident from the terms of membership that the age of applicants is regarded as very material, and misrepresentation is made ground of forfeiture. It not only changes the actual risk, but the membership dues are measured by it, so as to' make a difference of several per cent, between the age of the-deceased as shown by the testimony, and her age as represented to the defendant. This was the basis of the decision below. It was shpwn, without contradiction, if the testimony was admissible, that decedent was born December 14, 1843, and was therefore between, 40 and 41 years old when she became a member of the defendant company. Her application represented that she was a little over 32. The difference of just eight years is very great, and one which cannot be accounted for by any theory that would save the membership. The representation was a warranty, and it was also very material. The age of decedent was not shown by plaintiff at all, and by defendant was proved by three distinct pieces of testimony. The first was a sworn and examined extract from the parish record of the Catholic church at Amherstburg, Ontario, which showed her baptism in the latter part of December, 1842; reciting the names of her parents, with the description of her father as a soldier, and a statement of her age as born December 14, 1842. The priest swore this record was required by the rules of the church to be kept. It was more than 30 years old. Another document was a leaf sworn to as taken, after his death, from the soldier’s private record-book required to be-kept by soldiers in the British service, containing the names of the father and Iris wife, and the names, ages, and places of birth of all his children. In that record the description of decedent exactly corresponds with the parish record. This leaf was sworn to by an older sister of decedent, who removed it from the book after her father’s death in order to preserve the memoranda. ' Thjs sister also swore to the age of decedent, by reference to her own age as several years the elder of the deceased. Deceased was fully identified as the daughter of her parents and sister of the witness, in whose name the policy was first made out, and who paid several of the assessments. It was objected, however, that these documents should not have been received. So far as the family memorandum is concerned, there is no authority against its reception. It was precisely like the entries in a family Bible, or other family book used for keeping family minutes. The use of such things is almost universal, and it would generally be difficult, if not impossible, to prove relationships and ages without them. It in no way derogates from authenticity that it has been torn out of the book which originally held it, so long as it was traced and explained. It is on a printed form evidently designed for uniform army use, and it was kept by the father of deceased, so long as he lived, for the purposes mentioned. There is no reason why the parish register should not be received and credited. The rule laid down in England, and followed until recent times, which recognized none but registers and similar records of churches of the established ■religion, has been abrogated there by statute, so as to open the door to many other records which all churches keep, and which are quite as likely to be accurate as those of an established church. Those registers serve a purpose equivalent to that served by family records. In this country they are fairly to be dealt with as equivalent to corporation records, which are generally evidence of such matters as are recorded in the usual course of affairs. There is not much authority on the subject here, but all the analogies and reasons which apply to other presumptively correct documents apply to these. In this State, while it has not been definitely decided by any reported decision of this Court, it has been universal practice to receive such entries and papers as reliable evidence. In Hutchins v. Kimmell, 31 Mich. 126, a marriage was proved in that way; and in Durfee v. Abbott, 61 Mich. 471, recently decided by this Court, in a case sharply contested, the records of a Lutheran church in Detroit, showing the baptism of one of the parties, were resorted to, and practically disposed of a main issue in the case, being regarded as proof of the time of baptism, although not of the age, of the infant as there set out. The person described as being baptized is thereby indeatified as in being at that date. The question was decided in favor of such entries in an ■early case in the Supreme Court of the United States, where the entries of burial in a church in Philadelphia were held •admissible in a land controversy in Kentucky, tried in one of the courts of the United States. It was there held expressly that they were competent testimony. Lewis v. Marshall, 5 Pet. 470. There is no more reason to suppose these entries will be incorrect or falsified than any other. Fraud is possible anywhere ; but it cannot be presumed in records of churches any more than in any other documents preserved for similar purposes. The rejection of such proofs would be disastrous. They aTe relied on by the whole community. If anything had been introduced to contradict these facts •shown by the documents, and by the testimony of the sister •of deceased, there might have been issues raised that should have gone to the jury. But a court cannot properly submit to a jury facts on which the testimony is all one way. Wisner v. Davenport, 5 Mich. 501; Pennsylvania Min. Co. v. Brady, 16 Id. 332; Medina Tp. v. Perkins, 48 Id. 67; Seligman v. Estate of Ten Eyck, 49 Id. 104; Chadwick v. Butler, 28 Id. (2d ed.) 349, and notes. Plaintiff had the burden of making out her claim; and, while the recital of age in the certificate of membership would perhaps have availed her had no inquiry been made as to age, it was merely the decedent’s own statement, and could avail nothing against testimony. Here there was testimony that was positive and unambiguous, and it must stand until ■contradicted or impaired. The court below took this view, and the judgment should be affirmed. The other Justices concurred. See Sup. Lodge Knights of Honor v. Nairn, 60 Mich. 44.	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Morse, J. The defendant in this case occupies and maintains a gravel road in the township of "Walker, in the county of Kent, and leading into the city of Grand Rapids. - This action was commenced in justice’s court, by filing the complaint of Noadiah C. Wright, which was as follows: “State of Michigan, County of Kent — ss.: The complaint and examination on oath and in writing of Noadiah C. Wright, taken and made before me, Thompson Sinclair, a justice of the peace of the city of Grand Rapids, in said county, upon the twenty-sixth day of March, A. D. 1884, who, being duly sworn, says that heretofore, to wit, on the twenty-sixth day of March, A. D. 1884, at the township of Walker and in the county aforesaid, and for six days and more immediately prior thereto, the Grand Rapids & Walker Plank Road Company, a corporation organized under the laws of this State, did take, and 'still continues to take, toll for passing over the portion of their road which lies between sections 15 and 22 in the said township of Walker; and that during the whole of said time, and for a long time theretofore, said portion of said road was out of repair so as to make the passage of teams and vehicles inconvenient and dangerous. Wherefore he prays that said company be sued for the penalty provided by law in such case, and further dealt with in relation to the same as law and justice may require. “Noadiah C. Wright.” “ Taken, subscribed, and sworn to before me the day and year first above written. “Thompson Sinclair, “Justice of the Peace.” Summons was thereupon issued and served, and a trial had. The plaintiff recovered, and defendant appealed to the Kent circuit court. The pleadings in the justice’s court were oral, and returned by the justice to the circuit as follows: “ The plaintiff declared in an action of debt for the penalty given by section 3640 of the Compiled Laws of 1882, for fifty dollars damages. The defendant pleaded verbally the general issue.” Upon the trial in the circuit, when the first witness was sworn, the defendant objected to any testimony being received under the declaration for the reason that it stated no cause of action. The circuit judge ruled that an amended declaration might be filed, and thereupon, against the objection and exception of defendant’s counsel, the prosecuting attorney filed an amended declaration. The defendant also objected to any evidence being given under the amended declaration, on the ground that it was not for a cause of action that was tried in the justice’s court. The objection was overruled, and the trial proceeded. As the printed record and the original bill of exceptions appear in this Court, the objection is well taken. The declaration, as amended, alleges an indebtedness of $50, whereby an action has accrued— “ According to the provisions of section 55 of chapter 36 of Howell’s Annotated Statutes of the year 1882, being compiler’s section three thousand six hundred and forty-six of said Howell’s compilation.” The penalty sued for in justice’s court is found in section 45, c. 96, and compiler’s section 3640. As the prosecuting attorney was only authorized to plead an indebtedness in this general way by referring to the section and chapter of the statute violated (How. Stat. § 8432), this variance' is fatal. As the section and chapter mentioned in the amended declaration do not correspond with the compiler’s section, and that section does not give a penalty of $50, it is probable that there has been a mistake made in drafting the bill of exceptions. There was no appearance for the people on the argument in this Court, and we have therefore received no explanation, on the plaintiff’s part, of this discrepancy. We can only act upon the record; and as it stands the judgment must be reversed, and a new trial granted. There is also an evident mistake in the printed record and in the bill of exceptions filed in this Court, in the description of the road, which would become material. It is described as running west between sections 13 and 22, which is an impossibility, and also as running north-westerly through sections 13 and 10 and 2 and 4, which is another impossibility. The case must go back, as stated, as we have no power, after hearing, upon our own motion, to correct the errors contained in the record, if we were inclined to do so. The other Justices concurred.	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Sherwood, J. This case was an information for the murder of an infant child, about two and one-half months old, during the night of the eleventh day of June, 1885, at Lebanon, in the county of Clinton. The respondent is the father of the child alleged to. have been murdered. The testimony in the case tends to show that the child was well and healthy on the evening before it died; that on that night the respondent and his wife went to bed about 10 o’clock, — first, however, putting the child in question, and its twin brother, in the crib together, which stood in front of the bed, and about eight inches therefrom; that Mrs. Foley slept upon the front side of the bed, and the respondent on the back side, and which was next to the wall; that no one but respondent and his wife and the twin children stayed in the house that night, the house being locked up before respondent and his wife retired; that the respondent arose first in the morning; that it was then about 6 o’clock; that he went to the crib, found the children lying as placed the night before, and both were dead; that there was no evidence of the house having been entered by other persons during the night, but the children’s persons bore evidence of personal violence, and, when first discovered in the morning, their faces were bloody, — the blood proceeding from the nose and mouth of each child. Their skulls had also apparently been crushed. After the children had been buried four days, the bodies were disinterred, and a post mortem examination had. About this time the respondent was arrested, charged with the crime of murdering the child whose name was Edward Eoley, and described in the testimony as the larger of the twins. Upon the trial of the cause it was the theory of the prosecution that some time in the night of the terrible tragedy the respondent left his bed, went to the crib containing the infants, and there killed them both by crushing their heads and compressing their mouths and nostrils until strangulation became complete and life extinct. The respondent pleaded not guilty to the information; but, if he had any theory by whom or in what manner the death of the child Edward was caused, it is not apparent in the record. He was not sworn upon the trial, but gave his statement of the transaction to the prosecuting attorney, which was put in evidence, the substance of all of which appears in the record. Nowhere in this evidence, however, does he, except inferentially, deny the commission of the homicide; and, while he intimates the child died from natural causes, the mother had the impression some one had “murdered her baby boys.” The cause was tried in the Clinton circuit, and the jury found the respondent guilty of murder in the second degree. The court sentenced him to imprisonment during life. His counsel now ask a review of the case in this Court. Seventeen errors are assigned. The seventeenth assignment of error is based upon the defendant’s fourth request to charge the jury that— “The circumstances may create a probable ground for presuming guilt; but each and every circumstance, severally or united, are no more than inconclusive probabilities, and do not warrant conviction.” This, substantially, would require the court to direct the verdict of the jury. There were several medical men examined as experts. Their testimony was clear and intelligent, and to the effect that the death of the child Edward was caused by external violence, resulting in asphyxiation and injury to the brain. The fact that the children were killed by some one was not much contested upon the evidence. There were circumstances testified to, and not controverted by the defendant, strongly tending to establish the charge made against the respondent, and we think the sufficiency of the proof was properly submitted to the jury, and the court was correct in so ruling. , The first and second assignments of error relate to hypothetical questions put to Dr. Topping, based on the following assumed state of facts: “An infant healthy and all right in every respect at birth, and, at the age of eleven weeks, in good health seemingly; all right during the day, and as late as between 4 and 5 o’clock p.m.; seen about 6 a.m. the next morning dead, with back, neck, bowels, and hands warm, blood running out of nose, temples purple, back of one shoulder purple, lips purple, one-fourth of the head on right side pushed in deeper than rest of head, and left side sunken in somewhat, blood on the mouth and nose, and on the clothes around the neck, and, on washing head about an hour later, the sunken places felt to give in under the hand; and, upon post mortem made on the fifth day after death, and fourth after interment, found as follows: The external appearance of the child showing decomposition commenced; whole of body discolored; head and face swollen considerable; frothy, bloody matter oozing from mouth and nose; hands deflecting; quite a quantity of fluid beneath the scalp, particularly on the top and right side, and the free border of the right parietal bone resting over frontal; right eye protruding half its width; on opening the scalp, a sero-sanguineous fluid spouting out; tissues around and over the right ear somewhat thickened, and partly discolored ; skull, on being denuded, showing right parietal bone detached, and overlapping frontal one-half inch or more, the suture being broke apart so that the scalpel was passed in without touching the adjacent parts, some of the serrated edges broken off, and the anterior inferior corner of the right parietal bone also broken oil; left side parietal bone overlapping parietal, giving head appearance of being twisted; suture between the parietal and temporal bones on right side broken; membranes of brain all healthy, with no injury or discoloration; congestion, but blood-vessels not broken; brain in a semi-solid condition, with no extra vacations of blood or ruptured blood-vessels in it; thoracic and abdominal viscera all healthy, but congested; heart in a natural condition; that there was some dark blood in its cavities, being a little more on the right side than left; blood in the great blood-vessels not congested; lungs in an emphysematous condition, and with dark, purplish spots on them'under the pleura; larynx and trachea and bronchia healthy, but congested, no obstruction to them, and containing some mucous or frothy fluid; child well nourished; quite an amount of adipose tissue, and no wasting away of tissues.” After such statement the following questions were asked: “ 1. What, in your opinion, caused the death of the child?” “ 2. In your opinion, is there any disease which would produce death accompanied by conditions stated [which were repeated]?” These questions were objected to on the following grounds, as stated by respondent’s counsel: “1. That the post mortem examination by Gillam and Weller was made without any notice to the father of Edward, the accused. “ 2. The post mortem examination, of Edward Foley was made without giving Thomas Eoley, the father of Edward Foley, notice to be present. “ 3. Tüat said post mortem was not made in accordance with the statutes of this State, and in violation thereof. “4. That there was no inquest held over the body of Edward Foley. “5. That the testimony of Drs. Gillam and Weller, at that time, showed that an autopsy was not made upon all the parts of the body, and was irregular and invalid. “ 6. That the hypothetical question does not take into account all the conditions of the body, as testified to by the witnesses when they came there on the morning, and immediately after the night when they claim the death occurred; further, that it is not in accordance with the testimony of Dr. Gillam given in the case, or with his examination reduced to writing and filed in the case, and made a part of the original examination.” The objection was overruled by the court, and the doctor was allowed to answer the questions. To the first question he answered: “ I would give it as my opinion that the child died from asphyxiation, or from the form of it denominated suffocation, aided by extensive injury of the brain.” And to the second question he answered: “I know of no disease which would produce death with those symptoms.” He also testified that, in his opinion, the injury to the head was “made before death.” We are unable to discover any error in allowing these questions to be put, and in receiving the answers given. The facts contained in the hypothesis were fully supported in the testimony given, and the questions were both relevant and competent. The learning and ability of the physician were unquestioned. I fully agree with the counsel for the respondent in this case that the expert testimony of physicians was of very great importance, and that the answers to the hypothetical questions asked, and the weight given them by the jury, were dependent upon the jury’s finding the facts assumed in-the question to be true. The charge of the court was full and faultless upon this subject; but, notwithstanding the care and circumspection of the court exercised upon this point, it is possible, as suggested by counsel, that the jury found difficulty in determining what facts were derived from the post mortem of Edward, as distinguished from those in the case of the other child, and which were contained in the hypothetical questions. • ' The testimony shows, I think, that the circumstances of the death, and the manner in which it was accomplished, were so nearly the same in the case of both infants that the respondent could not have been prejudiced in the case from the cause suggested. The jury found that the child Edward did not die a natural death, but was feloniously killed; and, if such was the fact, I think there can be no question upon this record but that the other child came to his death on the same occasion, by the same hand, and in the same manner. However this may be, I know of no reason, nor is any made to appear in this record, why the jury in this case, under the clear and impartial charge given by the court, were not capable of discriminating as to what facts related to Edward and what to the other child. In regard to the testimony relating to the other child, the circuit judge charged the jury as follows: “ And here, gentlemen, I call your attention to some evidence in the case as to the appearance, the morning of the eleventh, of the other child, and also as to the post mortem examination of the body of the other child. That evidence is not in this case for the purpose of showing that the respondent is guilty of another crime; for, if he was, it should have no weight in this case. He is not to be convicted of this crime charged because he might possibly be guilty of another. You should be careful not to consider it in that connection. But it was received because you might conclude that, if there was violence to the other, there was violence to. this, — was a part of one and the same transaction. If it was i^ofc a part of the same transaction, if the other child did not receive the injuries which the evidence it is claimed discloses, then that evidence as to the other child should not be considered, — neither the appearance of the other child on the morning of the eleventh, nor what was .found as to the body of the other child at the post mortem examination; but if it was a part of the same transaction, then all that occurred there would be part and parcel of a connected cluster of events, which would reciprocally serve to color and characterize each other, and are properly to be considered in order to judge correctly as to the quality of the act done.” In regard to the expert testimony, the court further charged the jury: “ Bearing upon this question, as to how that child came to his death, or what was the cause of it, certain physicians have been called as experts. They are called to testify, not because they were present, and witnessed any facts which they came here to tell you about, but because they are supposed to have given this particular branch of science more study than you or I, or the attorneys, and hence they come here to give you their judgment, based upon certain facts which are supposed to be proven from the evidence; and, upon that statement of, those facts, they give you their opinion or their judgment. “Now, gentlemen, that evidence, in the end, is subject to your supervision and to your judgment. They give you their opinion, as I have said before, upon a supposed state of facts,—supposing certain things to exist as shown from the evidence. Now, it becomes important for the jury, just as far as you can, to look into the evidence, and determine whether the facts which are supposed to exist in the hypothetical question that is asked of the doctors do actually exist,— whether there is any evidence upon which to base them in this case, and whether the facts supposed to exist be true or not; because if one fact supposed to be true, included in the question, is untrue, not supported by the evidence, then the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we don’t know what his opinion would be if one of those facts were withdrawn. ” Under the testimony in the case, and the charges above quoted, I do not think the respondent’s first and second assignments of error can be sustained. The fourth, fifth, thirteenth, and fourteenth assignments of error may be considered together. They all raise the question whether it was competent for the prosecution to give testimony tending to show that the. smaller infant was killed on the same occasion as the killing of Edward, — was a part of the same transaction, — and that the circumstances of such killing were the same. In this case it was impossible, as appears by the record, to give the circumstances surrounding and connected with the death of Edward except with those connected with the death of the other child. They both lay in the. same crib, in the same room; died the same night, between 10 o’clock in the evening and 6 o’clock in the morning; both were found dead in the same place in which they had been placed in the evening, and at the same time; upon both were found the same marks of violence, which, in the opinions of the several physicians, produced death; and all the statements made by the respondent and his wife (the only persons in the house that night except the infants) concerning the death of Edward related to both children, and, so far as can be discovered from the statements, acts, and feelings of the respondent, he had the same motives for killing the one as the other of these children. I have been unable to find any authority for sustaining these several assignments of error under the eiicumstances appearing upon this record; and, if any can be found, I am free to say it could never receive my assent. If any of the testimony offered was admissible, and admitted, although the purpose announced by counsel for which it was offered was not the true ground of its admission, it would make no difference, provided the proper direction was given in the charge; and this I think was sufficiently’ done in this ease, so far as the point is made by respondents counsel. The several objections contained in these assign ments of error were properly overruled, and the testimony was properly admitted. People v. Marble, 38 Mich. 120; State v. Lapage, 2 Amer. Crim. Rep. 506, 568, 581, 582; Roscoe, Crim. Ev. 91; Rex v. Geering, 18 Law J. Mag. Cas. (N. S.) 216. Any facts tending fo prove the main facts, and cotemporaneous to and connected with them, are admissible, as a general rule. 1 Greenl. Ev. § 108; 1 Whart. Crim. Law, §§ 648, 649; People v. Mead, 50 Mich. 228; People v. Doyle, 21 Id. 221; Coleman v. People, 58 N. Y. 555; 1 Bish. Crim. Proc. § 1125; Heath v. Com., 1 Rob. (Va.) 735; Haskins v. People, 16 N. Y. 344. The people’s case was largely made up of circumstantial evidence. The objections taken to the testimony of statements made and language used by the respondent relating to these infant children, tending to show his motives and inducement in putting them away, I think cannot be sustained. • These statements were all competent, and much of this testimony I regard as very significant. The objection to the testimony of Mrs. Eice was not well taken. The evidence was competent. The testimony referred to the respondent’s conduct and statement immediately after the discovery of the death of the children, and at the house where it occurred. It was the statements of the wife, in the presence of the respondent, in regard to the manner of the children’s death, and appears to have been necessary to a full understanding of what was said by the respondent ; and in such case the rule sought to be applied, that the wife cannot testify against the husband, who is the respondent, is not encroached. The wife was not sworn in the case, and the facts queried after were a part of the res gestee. I see no error in allowing the written statement of the respondent in evidence. The record discloses no undue influence used in obtaining it; and the statement was given by one of the two persons only who had the opportunity to know all the facts connected with the tragedy when the homicide actually occurred. A full examination of the manner in which it was obtained by the public prosecutor was gone into before it was received; and the disclosures made upon the subject, and the testimony given, were not contradicted, and, under the circumstances, it must be held admissible. Roscoe, Crim. Ev. 52, 53; Wright v. State, 1 Amer. Crim. Rep. 191. Counsel for respondent requested the court to charge the jury as follows: “2. To warrant a conviction, the circumstances proved ought fully to exclude all possibility that any other person could have committed the crime. “3. The proof in this case consists of circumstances, but, taken severally or united, they do not exclude the hypothesis that some other person might be guilty of the murder; and, if they do not, the prisoner ought not to be convicted.” I do not understand the first of these requests to state the law correctly. If this statement of the law is correct, it would be impossible to convict unless the circumstances were such as to exclude all possibility that any other person could have committed the crime. The third request embodies the same doctrine as the second, and then asks the court to direct a verdict for the respondent. TJpon the subjects contained in these two requests the court charged the jury: “ It is necessary for the prosecution to show, under all circumstances, as a part of their own case, that there is no innocent theory possible which will, without violation of reason, accord with the facts proven in the case. Circumstances are never to be presumed. Each fact making up the chain of circumstances must be proven beyond a reasonable doubt; and, if the prosecution fails to prove any one link making up the chain of circumstances, the prisoner ought not to be convicted.” And following such charge the court said that— “ Each link must be proven beyond a reasonable doubt. Circumstantial evidence is sufficient, and is often more persuasive to convince the mind of the existence of a fact than the positive evidence of a witness, who may be mistaken; whereas a concatenation and a fitness of many circumstances, made out by different witnesses, can seldom be mistaken or fail to elicit the truth. But then those circumstances should be strong in themselves, should each of them tend to throw light upon and prove each other, and the result of the whole should be to leave no doubt upon the mind that the offense has been committed, and that the accused, and no other, could be the person who committed it.” I think this charge gave the respondent the full benefit of the rule established by all the decisions. After a careful review of this case I have not been able to discover any error committed on the trial in the circuit, and the judgment should be affirmed. The other Justices concurred.	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Bird, J. Plaintiff complains of defendant in an action of negligence for its failure to furnish proper tools, including goggles, for his use in its locomotive repair shop at Dearborn. He had judgment, and defendant assigns error. It appears plaintiff was employed at defendant’s repair shop as a boiler maker. On the day of the accident he was ordered to straighten or flatten a piece of boiler iron. He went to the tool room and procured a “flatter.” This is a piece of iron to put over the thing to be flattened to receive the blows of the sledge. When he was given the tool he was given a pair of goggles with the usual bows to wear while using it. While striking the flatter with the sledge his goggles fell off, and at the same instant a splinter of steel from the flatter hit him in the eye. He was given first aid and after- wards taken to the hospital, and several days later the eye was removed and an artificial one inserted instead. Plaintiff shows by his testimony that after striking the flatter he could tell that there was too much temper in it, and he took it to his foreman and complained that it was not a proper tool for such work, that there was too much temper in it, that it should be softer. His foreman assured him the tool was all right, and ordered him to return to his work. He also complained that the goggles were not suitable for the work. Instead of bows he says they should have had a strap to fasten around the head so they would not fall off while he was using the sledge. The trial court allowed the jury to pass upon the sufficiency of the flatter and the goggles. Defendant insisted when the proofs were in it was entitled to a directed verdict. This contention was denied. The Goggles. There is much doubt whether defendant would have been negligent if it had furnished no goggles. This question is much discussed by counsel. We think there is little profit in discussing that question in view of the fact that defendant did furnish them, and by a printed rule required them to be used. The real question then is, Did they reasonably serve the purpose for which they were intended? It was shown by the defendant that no different goggles were used in other shops of like character where any were used. It has been said by this court that in furnishing tools the master was under no obligation to furnish the best tool in use, if it were one that was in general use in other shops where like work was done, and reasonably served the purpose for which it was intended. Lyttle v. Railway Co., 84 Mich. 289. Plaintiff does not complain that the goggles were defective in any way, nor does he show that goggles with a strap on them were in general use in other shops where like work was being done. It was shown that the master had installed a safety device for the protection of his men, and one which was not generally in use. Under such circumstances, when the master selects the device and it reasonably serves the purpose for which it was intended we think no negligence can be predicated upon his failure to furnish a better one. As to this question we think defendant was entitled to a directed verdict. The Flatter. No authority need be cited to the proposition that the master is obliged to furnish his employees with reasonably safe tools with which to work. Plaintiff says the flatter had too much temper in it. Had it been softer it would not have given off any splinters. He called it to the attention of the foreman and he thought it was reasonably safe. Under such circumstances the plaintiff had a right to rely upon the mature judgment of his superior. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Scendar v. Winona Copper Co., 169 Mich. 665. The evidence upon the question whether the flatter was a reasonably safe tool to use was conflicting and we, therefore, think it was proper to submit it to the jury. Noble v. Bessemer Steamship Co., 127 Mich. 103 (54 L. R. A. 456, 89 Am. St. Rep. 461). As the case must be returned to the trial court for retrial, it may be well to advert to the fact that the declaration imperfectly alleges the injury by reason of defective tools, in that it does not point out what the tool was nor what the particular defect was. The safety device is the only thing pointed out. We think this should be cured by an amendment of the declaration before a retrial. Smead v. Railway Co., 58 Mich. 202. The judgment must be reversed for the error pointed out, and a new trial granted. Defendant will recover costs of this court. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	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Sherwood, J. In this case the plaintiff sues the defendant for an alleged assault and battery, which he avers was -committed upon him on the nineteenth day of September, 1882, by one of the conductors of the defendant, while he was riding upon one of its trains, without any justification. The case was tried before Judge Montgomery in the Kent ■circuit by jury, and the plaintiff failed to recover, and now brings error. The case was before this Court on error at the January term, 1884. A new trial was then ordered, which has since been had, the proceedings in which we are now called upon to review. The plea in the case was the general issue. The plaintiff’s claim is that the conductor wrongfully threatened to expel him from the cars of defendant, and for that purpose laid violent hands upon him, and thereby ■compelled the plaintiff, who was in feeble health at the time, to pay fare a second time, the plaintiff having bought and paid for a ticket, which the conductor refused to take. The ticket held by the plaintiff, when purchased by him at Mantón, was represented to him by the agent as good to Traverse City. Traverse City is located on one of defend ant’s branch lines, connecting with the main line at Walton junction, which is situate about nine miles north of Mantón; and it was between these two stations that the alleged altercation occurred. If what the plaintiff states is true, the •defendant owed him a ride on its train to Walton junction; and if what the defendant’s conductor testifies to is true, the ticket held by the plaintiff did not furnish the proper evidence of the plaintiff’s right to ride between the points named. Counsel for defendant claims that, as between the conductor and the passenger, the former can only accept a ticket from the latter in payment of fare when it contains upon its face the marks, words, letters, and figures required by the rules of the company to be placed thereon, showing the holder’s right to ride, and that what appears upon the face of the ■ticket is conclusive between them; that the conductor has the right to act accordingly. It was upon this theory the ■cause was tried and submitted to the jury. The ticket purchased was part of an excursion ticket, good when first issued for a ride from Sturgis to Traverse City. After the plaintiff had purchased and paid for the ticket, he ■observed it did not look like the tickets he had been accustomed to purchase, and thereupon he returned to the ticket ■office, and asked the agent if it was good, and was informed by the agent it was. He then entered the defendant’s passenger coach, and the train moved on for Walton junction. When the conductor asked for the plaintiff’s fare, he delivered to him the ticket he had thus purchased. The conductor told plaintiff he could not receive it for his fare, whereupon plaintiff informed the conductor that he bought the ticket at Mantón of the company’s agent, and was informed by him it was good; that he paid the agent for the ticket, and he should not pay his fare again. The conductor then laid his hand upon plaintiff’s shoulder, and rang the bell, and told the plaintiff, unless he paid the fare, which was 25 cents, he would put the plaintiff off the train. The plaintiff then under protest paid the fare demanded of him. These facts appear by the record, and are not disputed. Whether or not the ticket had been canceled between Grand Rapids and Walton junction by conductor’s marks was a fact contested before the jury, and upon this subject the court charged the jury: “ If the ticket had been canceled between those points, then upon its face it was an invalid ticket, and, when the fact was called to the attention of the plaintiff, he had no longer a right to insist upon being transferred over this line upon that ticket.” And further charged: “If it was not valid upon its face, but had been canceled between those points, the plaintiff cannot recover in this action.” In response to a question from a juror, the court further charged as follows: “ I said to you that if the ticket, upon its face, appeared to-be a genuine ticket, entitling the party to ride between the stations named, Mantón and. Walton junction, and had no evidence of its infirmity, or of having been used before, and the plaintiff purchased it in good faith, and believed that it entitled him to a ride between the stations, then it should be treated as such, and the party would have a right to refuse to leave the car; but that if the ticket was punched, indicating to the conductor by the punch-mark that it had been used between Grand Rapids and Walton junction, that would be evidence of an infirmity of the ticket, and the plaintiff would not be entitled to insist upon that ticket being received.” These charges, with the exception of that wherein the court says the plaintiff would have a right to refuse to leave the cars, are erroneous. There seems to be no question but that the plaintiff purchased his ticket of an agent of the company, who had the right to sell the same and receive the plaintiff’s money therefor ; that the ticket covered the distance between the two- stations, and was purchased by the plaintiff in perfect good faith; that the ticket was genuine, and was issued by the company, and one which its agents had the right to sell to passengers. The plaintiff had a right to rely upon the statements of the agent that it was good, and entitled him to a ride between the two stations. It was a contract for a ride between the two stations, that the defendant’s agent had a right to make, and did make, with the plaintiff. The ticket given by the agent to the plaintiff was the evidence agreed,upon by the parties, by which the defendant should thereafter recognize the rights of plaintiff in his contract; and neither the company, nor any of its agents, could thereafter be permitted to say the ticket was not such evidence, and conclusive upon the subject. Passengers are not interested in the internal affairs of the companies whose coaches they fide in, nor are they required to know the rules and regulations made by the directors of a company for the control of the action of its agents and the management of its affairs. When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures, or other marks. All sorts of people travel upon the cars; and the regulations and management of the company’s business and trains which would not protect the educated and uneducated, the wise and the ignorant, alike, would be unreasonable' indeed. On the undisputed facts in this case, I think the plaintiff was entitled to go to Walton junction upon the ticket he presented to the conductor. Maroney v. Old Colony & N. Ry. Co., 106 Mass. 153; Murdock v. Boston & A. R. R. Co., 137 Id. 293. See this case in 53 Mich. 118. In this case the trial was concluded on March 14, 1885. The bill of exceptions was settled May 26, 1886, and errors were assigned in this Court on May 31 following. On the fourteenth of May, 1885, Act No. 101, Laws of ] 885, was approved, whereby a party aggrieved by the charge of the circuit judge may assign errors upon such charge in this Court the same as if exceptions had been taken thereto at the circuit. I think errors in this case were properly assigned to the charge. The statute applies to a question of practice only. It is a remedial statute, and was intended to apply to cases then pending as well as to those thereafter to be commenced. There is no discussion of the other questions raised required for a proper disposition of the case. The judgment must be reversed, and a new trial granted. Campbell, C. J., and Morse, J., concurred. Champlin, J., did not sit. See Hufford v. Grand Rapids & Indiana Ry. Co., 58 Mich. 118. See Just v. Porter, ante, 565.	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Sherwood, J. On the first day of April, 1873, the Newaygo Company, then a copartnership, owned blocks A and B, in the village of Newaygo, and the. canal and water-power thereon, formed by damming the Muskegon river at that point. The Newaygo Company and its assigns, at that time and ever since, have been using the water-power for the manufacture of lumber and for other purposes, the waterpower being one of the largest in the State, and the company owning it has done a constantly increasing business. At the time mentioned, the Grand Bapids, Newaygo & Lake Shore Bailroad was in operation to the village of Newaygo, and the railroad company, desiring to extend its road to the village of White Cloud, and the route selected passing over blocks A and B belonging to the Newaygo Company, they, for a nominal sum, sold and conveyed to the railroad company a right of way across said blocks for the use of its railroad. The deed is dated the first day of April, 1873. That portion of the deed needing special consideration in the case is the description and reservation, reading as follows: “A right of way in and over a certain strip of land situate, lying, and being in the village and county of Newaygo, Michigan, and designated as a strip of land out of block * A/ in said village, 60 feet wide, and lying 30 feet in width upon each side of, and at right angles with, the center line of said company’s railroad, as staked out by John Manly,, engineer, over said block ‘ A,’ and commencing at a point, on the southern boundary of said block ‘A,’ 35 feet east of the range line between townships twelve (12) north, range twelve (12) west, and twelve (12) north, of range thirteen (13) west, in said county, and running thence northerly, on a curve of 717 feet radius, to the bank of the Muskegon river. “ That portion of said land lying between the river and the mill-race, over which said track passes, is reserved for the free and uninterrupted use of said Newaygo Company, their-heirs or assigns, forever. “ The meaning is that the road shall have the privilege to-build a bridge, or approach to a bridge, over the portion of said land above reserved, at such an elevation as not to interfere with the usual business of the said Newaygo Company. Said railroad company to have the right, at any time, to use the ground here reserved for the purpose of constructing said bridge, or approach thereto, or at any time to repair and maintain said bridge, approach, and railroad. “ For the said party of the second part, and their assigns and their servants and agents, to build, construct, and maintain a railroad in and over said strip of land, and at all times freely to pass and repass by themselves, their servants, agents, and employés, with their engines, cars, horses, cattle, carts, wagons, and other vehicles, and to transport freight and passengers, and to do all other things properly connected with or incident to the location, building, maintaining, and running of the said road, and to use the earth and other materials within said strip of land for that purpose.” On taking possession of the Tight of way thus granted, the railroad company constructed its road over said block A, and built a bridge over the canal for its track, keeping within the limitations of the deed; and the complainant’s bill of complaint alleges that the Grand Rapids, Newaygo & Lake Shore-Railroad Company so used said right of way and said bridge, so constructed, until it transferred its road and other property to, and became consolidated with, the Chicago & West Michigan Railway Company, the defendant in this suit. The bill further avers that said defendant proposes to erect a new bridge over said canal, in place of tbe first one, constructed of iron; that defendant proposes to erect, for the support of the same, two large stone piers placed in the canal in such manner as to greatly impede the flow of water to complainant’s mills, thereby greatly injuring the complainant; that it would decrease the capacity of the canal about one-third, by leaving less than two-thirds pf the free space therein used for the passage of water and logs to the complainant’s mills. The bill of complaint further avers— “ That finally, and on the morning of Sunday, the twenty-fourth day of January, 1886, said railway company sent a force of from 75 to 100 men to Newaygo, and’ took forcible possession of the property of your orator, and imprisoned its night-watchman by it employed, and thus prevented an alarm being given; that they took possession of the saw-mill, planing-mill, and other factories belonging to your orator, and, blocking the large wheel of the planing-mill, opened the gates of same, took out the slash-boards from the waste-weir in the saw-mill, and endeavored to raise the gates in said mill; also went up to the head-gates of the canal, and, using lumber belonging to your orator, and large quantities of hay brought by themselves for that purpose, shut the water out of said canal, greatly endangering the same, and freezing up some of the wheels in said mill, and also the pump used for fire protection, thus endangering the entire property of your orator to destruction by fire; that, during this time, others, acting under like orders, commenced shoveling earth out of coffer-dams into the canal to prepare a foundation for said piers; that your orator, acting through its proper officers, has forbidden the prosecution of said work, and notified said men that it would defend its legal rights in the premises, and finally succeeded in securing a cessation of said work after one pile had been driven.” At this time the railway company had sent a force of men with a pile-driver to drive piles for a foundation for said proposed piers in said canal. Complainant further says: “ Your orator is informed, through its said president and other officers, that said railway company has only suspended work to arrange for a more powerful effort to renew and complete the same, and that it threatens to send a large force of men to Newaygo, and drive said piles in said canal, and erect said piers therein, in spite of all opposition; that, if said railway company is allowed to drive said piles in said canal, and erect said piers therein, your orator will sustain irreparable damage and loss, by being deprived of the free and unobstructed use of said canal for the flowage of water and floatage of saw-logs therein to its said mills and factories, and that the damages thus sustained will he incapable of full ascertainment in a suit at law, and that the wrong done will amount to a continuing trespass upon the rights of your orator; and that said Chicago & West Michigan Railway Company has no legal or equitable right to commit such acts, and thus injure and obstruct the business of your orator.” The bill prays that— “The Chicago & West Michigan Railway Company, its officers, agents, and employés, may be restrained by an injunction issuing'out of this court, and to it and them directed, from driving piles in the said canal so owned by your orator, as aforesaid, and from constructing piers for the approach to its said river bridge in said canal, or upon said piles, and from in any manner attempting so to do, and from in any manner obstructing the free and uninterrupted flow of water in said canal at the point where its said right of way and bridge now crosses the same, and from injuring the banks of said canal on said right of way by excavations therein, — all until the further order of this court, — and that said preliminary injunction may he made perpetual on the final hearing of this case, and that your orator may have such other or such further relief in the premises as the nature of its case may require, and as shall be agreeable to equity and good conscience.” The defendant filed its answer, in which most of the material facts are admitted, and justification thereof is claimed under the deed from the Newaygo Company. It claims it had the right to construct the bridge in the manner proposed and attempted. The answer also claims and denies— “ That the right reserved by said deeds of right of way to the said Newaygo Company, which right was a mere right of passage over said strip of ground, has passed to the said complainant, for the reason that, by its terms, it is expressly limited to the usual and ordinary business of the Newaygo Company as it existed at the time said right of way was granted, and for the reason that such reserved right wholly ceased and terminated when the said Newaygo Company ceased to do business as such; and the said defendant denies that the structure which it proposes and has planned to build across ■said canal and said strip of ground will constitute any infringement of the rights reserved under said deeds of right of way, even if they are now in full force and have passed to said complainant, or any infringement of the use of said canal or the banks, under said deeds.” Defendant avers that the stone piers project into the canal, •one not exceeding three and one-half feet, and the other not more than three feet, and that the water-way in the canal, if said piers were completed, would not be obstructed by more •than the projection of one of them. The defendant admits that it sent a force of men to drive piles for a foundation for the piers in the edge of the canal, and would have continued the construction had it not been •enjoined, believing it had the right so to do. “And the defendant, further answering, denies that said ■complainant will sustain irreparable or any damage or loss by reason of the construction of said piers in said canal, either in diminution of water or in the use of the same for floatage of logs to its said mill; and avers that no damage whatever, •of any kind or nature, will be sustained by said complainant by reason of the construction of the piers proposed to be built by said defendant; and denies that any wrong will be done by this defendant amounting to a trespass upon the .rights of the said complainant; and avers that a necessity does exist for the construction of said piers in said canal.” The defendant also claims and insists that the complainant has not made out such a case as entitles it to any equitable relief, - and prays the benefit of a demurrer. The cause was heard, on pleadings and proofs, before Judge Fuller, who made a decree in accordance with the prayer of the bill. We think the bill states grounds for equitable relief, and is not subject to the demurrer claimed. The grounds stated are also sufficiently specific. It states that the complainant owns the water-power and canal, and that the present flow of water is no more than sufficient to carry the various mills and machinery now dependent upon it for propelling power; that the defendant, without right or authority, threatens, and has already commenced, to place two stone piers, large enough to support an iron bridge to be used for railroad purposes, extending out into the canal on either sido, and diagonally across the same, 10 feet, and, for the purpose of erecting said piers and building said bridge, has taken forcible and violent possession of the complainant’s property, deprived it of the use of its water-power and mills, and threatens to continue such possession until the bridge is completed; and that the complainant will thereby be deprived of the use of about one-third of the water-power and way, and the stability of the embankment of the entire canal will be endangered. • It would seem that such a state of facts ought to entitle the complainant to the equitable consideration of the court, and to that preventive remedy which a court of equity alone can grant. Substantially such is the case made by the bill; and, if these facts are true, a more flagrant violation of private rights, committed in open defiance of law and against the public peace, has seldom been brought to our attention in an equity pleading. We now come to the merits of the case as presented by the record. > The first important question to be considered is, what is the true construction of the deeds under which the defendant claims the right of way over the premises of the complainant? If we examine these deeds under the rule recognized and approved by this Court in McConnell v. Rathbun, 46 Mich. 303, that “ all grants must be construed reasonably, and in the light of surrounding circumstances,” we shall, I apprehend, have but little difficulty. The surroundings of the parties, and their expectations in regard to the future development and increase of business, and the probable necessity for an increase of power, which could only be obtained by the widening of the canal, and everything relating to the full enjoyment of the water-power to its largest extent, must have been contemplated and in the minds of the parties interested at the time the right of way was conveyed to the Grand Rapids, Newaygo & Lake Shore Railroad Company, in 1873. The Newaygo Company then owned in fee all the property necessary to enable it to develop the power to its fullest extent. It owned the entire power, and exclusive right of boomage and fio wage along the banks of the Muskegon river for six miles up the stream, and the property was. “ bought for the purpose [as stated by one of complainant’s, witnesses] of the manufacturing business, with the intention of increasing it as fast and as much as the power of the river would warrant.” Newaygo county, at the time the right of way for the railroad was obtained, contained a large amount of valuable timber of nearly every variety, and of the choicest kinds, which, with the advantage of the almost unequaled water-power on the Muskegon to aid in its manufacture, made the property and water-right of the Newaygo Company, now in question,, of the utmost importance and greatest value, not only to the owners, but to the railroad company itself, inasmuch as the early business of the road was very largely supplied from the lumber and other articles manufactured at the mills of the-complainant. These are some of the circumstances surrounding the parties at the time the conveyances of the right of way claimed by the defendant were made; and we do not think it was in the mind of either of them, or the agents who transacted the business for them, nor the intention of any of them, that the. water-rights of the complainant, or’ anything appurtenant thereto, which the complainant, or, rather, the Newaygo Company, believed to be necessary to the complete enjoyment of the fullest development possible of the said water-power, was to be surrendered to the use of the railroad company. The question then arises, did the Newaygo Company make any such surrender in the conveyances made? Let us see for a moment what is the situation of the premises in question. The Muskegon river is a large, rapid stream, passing through Newaygo village nearly east and west. It runs nearly in a straight line the length of the canal, starting at the dam across the river. The canal runs from the dam parallel with the river below about 500 feet. The distance between the canal and the water in the river at the bottom of the embankment is about 70 feet. The embankment is about 30 feet wide on the top, and the north side of the embankment extends to the water in the river. The top of the embankment is, and always has been, used as a road. It is about 10 feet wide, and then begins to slope down on either side. This road or track is used by the company in repairing the embankment and the guard-gates and other works at the dam, and there is no other practicable way of reaching these gates and works. At this point the river runs west, and the right of way is located about one-third of the length of the canal west of the dam. The land between the canal and river is a made bank, and needs to be looked after frequently. Supporting an immense pressure from the water, its construction and usefulness can only be maintained by the most thorough and substantial work. The canal is used, not only for conducting the waters from the river to the company’s machinery, but also for the purpose of floating logs and timber from the river to- complainant’s mills. From ten to twelve million feet now pass over this water-way annually in conducting cbmplainant’s business. It also appears from the testimony that the most feasible and practicable way of widening tbe canal is by extending it south. These are some of the surroundings of the property in question, which must be taken into consideration in construing these conveyances, by which it is claimed this embankment, or middle ground, if it may be so called, was given up to the use and control of the railroad company, to such extent as its interests should from time to time require, by the old Newaygo Company. When these surroundings are properly considered, it is impossible, it seems to us, to come to the conclusion that any such rights were intended to be included in the right of way conveyed. It is clear that the free, undisturbed, and exclusive use of the middle ground was as necessary and essential to the best interests of the Newaygo Company as was such use of the canal itself, and that the proper construction of the conveyances has been given by counsel for complainant; that, in whatever manner the defendant makes use of its right of way, it must in no way interfere with the complainant’s free, unobstructed, and exclusive use of both the canal and the land lying between it and the river, except for the two purposes mentioned, viz.: 1. For the purpose of constructing a bridge, and approach thereto, of sufficient height over the canal and middle ground so as not to interfere with the complainant’s business. 2. For the purpose of repairing such bridge, approach, and railroad. —And, when so used by the defendant, it must be without injury to the property, rights, and business of the complainant. We think the manner of constructing the first bridge, and the placing of ..the piers therefor, — the one on the north side in the river, and the other, on the south side, beyond the south bank of the canal, — and the fact that two members of the old Newaygo Company, viz., Mr. AVood and Mr. Lawrence, refused to make the conveyance of the right of way until the location of these two piers was made and established as intended by the parties in the conveyance, and in which locations they have ever since remained until attempted to be changed by the present owner, very clearly indicate that the construction claimed by the defendant’s counsel is not in accordance with the original purpose of the parties to the deed, nor with the construction they gave it. We think the defendant had no legal ground whatever, without the consent of the complainant, to place the piers for the new bridge where the attempt was made to locate them. It was of no consequence whether the complainant suffered damage or not by the proposed erections in the canal and middle ground, so far as the complainant’s rights are concerned. It was the right and privilege of the complainant to have the use of the canal and its embankments free and unobstructed by the defendant’s bridge; and the act of the latter, in its attempt to infringe that right, was nothing less than a willful trespass on the part of those participating, and they were properly restrained from proceeding further by the court. It is unnecessary for complainant to invoke the aid of section 3323 of Howell’s Statutes to secure its rights in this case. The complainant’s title to the premises is sufficient for that purpose. We do not think, upon this record, that the defendant had any consent, legal or otherwise, from the complainant to do what was attempted by its agents and employés. The rights reserved to the Newaygo Company from the right of way conveyed by the deeds were not limited to that company’s use. That company was no more than a parttiership composed of three individuals; but it was clearly intended, we think, and it is so stated in the conveyances, that they extended to their heirs and assigns, and complainant is now well entitled to use and enjoy the same to the same extent that the old Newaygo Company could had it not conveyed the property. We think it fully appears from the record in this case that the injury threatened, attempted, and restrained is of such a nature as to materially lessen the enjoyment of the property and rights of the complainant, and in such cases there can be no question but that the grievance becomes one of equitable cognizance, and the duty of courts is plain. White v. Forbes, Walk. Ch. 113. The encroachment complained. of by complainant, if allowed to continue, would eventually ripen into a title, and can only in this way be prevented without the necessity of bringing a multiplicity of suits (1 High, Inj. § 702); and as to damage being irreparable in such cases, see Washb. Easem. 243. It is unnecessary to continue the discussion of the case further. Suffice it to say, it is one of those cases where no technical rules of either pleading or construction can be properly applied. Technicalities in equity may be resorted to when in no other way can the just rights of the parties be protected and preserved, but they are intolerable in any other case, and should not be allowed to control. After a careful examination of the questions involved, we are of the opinion that the decree of the circuit judge is correct, and should be affirmed. Champlin and Morse, JJ., concurred.	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Sher'wood, J. These complainants were all defendants in-separate suits against each in ejectment, wherein the plaintiff*' was the defendant, Gertrude Smith, and the object of the bill-in this case is to enjoin Mrs. Smith from prosecuting those three ejectment suits, and to quiet the title to the property therein in dispute. The defendant demurred to the complainants’ bill, alleging the following grounds therefor: “ That It appears by the said bill that the same is exhibited by the complainant Isaac hi. Jenness, and the several other persons therein named as complainants thereto, for distinct, matters and causes, in several whereof, as appears by the sail bill, the said complainants are not in any manner in common or jointly interested or concerned, and that the bill is multifarious, and that the said complainants have not, in and-by their said bill, made or stated such a case as entitles them in a court of equity to any relief from or against this defendant touching the matters contained in said bill, or any of such, matters.” The cause was heard before Judge Stickney in the Lapeer •circuit, where the demurrer was sustained, and the bill dismissed. The allegations of> the bill are substantially the same as those in Winslow v. Jenness, ante, 84, with the following additions, viz.: All the lands referred to in Winslow v. Jenness were sold prior to January 3, 1878. Up to that time Allen Fish and I. N. Jenness, as survivors of I. N. Jenness & Co., 'had continued the business for the purpose of closing it up, ■believing that in so doing they could best subserve the interests of all concerned. At that date Jenness learned for the ■first time that Allen and Henry Fish had mortgaged their two-thirds interest in the partnership real estate of I. N. ■Jenness & Co. in 1871 for $40,000, which mortgage had never been recorded, and that there was still due on said mortgage about $10,000. There was also due to John L. Woods, on a ■mortgage given by A. and H. Fish on their interest in the same lands, $25,000; so that the interest of A. and H. Fish in this partnership real estate was incumbered by mortgages to the amount of $35,000. At this time the firm of 1. N. Jenness & Co. owed I. N. ■Jenness $20,000, and other unsecured creditors $21,000, and the firm of A. & H. Fish were indebted to I. N. Jenness & ■Co. $83,000, and were insolvent. It was agreed that all the -assets of the firm should be conveyed to Jenness, who, in •consideration therefor, agreed to pay the two mortgages of $35,000, to pay all the indebtedness of I. N. Jenness & Co., and to release all his claims against A. & H. Fish. This agreement was carried out; and all the property turned over to ■Jenness did not exceed in value 75 per cent, of the indebtedness which Jenness agreed to pay, and did pay. To pay this indebtedness Jenness conveyed the bulk of the property transferred to him to John L. Woods, who controlled the two mortgages. He used $1,000 of his own means, and mortgaged his homestead for $12,000. These additional allegations do not change, in any essential particular, the main features of the ease. The same rule which prevailed in Winslow v. Jenness will govern the present case, and determine the result. It is unnecessary to discuss them anew here. The decree at the circuit must be affirmed, The other Justices concurred.	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Champlin, J. Respondent was arrested on a warrant •charging him with selling and furnishing— “ To Marshall Gilland a certain quantity, to wit, two glasses,•of fermented liquor, to wit, cider, as a beverage, without first having executed and delivered to the county treasurer of Allegan county the bond required by section thirteen (13) of Act No. 259 of the Public Acts of Michigan for the year 1881, or the bond required by section nine of said act; he, the said Albert R. Foster, being then and there a person whose business consisted in part of the sale of drugs and medicines, and said liquors not being then and there sold for •mechanical, medicinal, or sacramental purposes.” He was convicted before the justice, and on appeal to the circuit court he was again convicted, and has brought the case here upon exceptions before judgment. He claims that section 13 does not include the sale of fermented cider; that the section does not make it unlawful to •sell or furnish intoxicating liquors, that is, it does not use the word “ intoxicating,” and insists that it is purposely omitted; that, if it covers “hard” cider, there is no reason why it would not cover all classes of liquors that ferment, such as mead, metheglin, and sap from the maple or birch. We do not agree with respondent’s counsel in the views urged by him. Considering the subject-matter and general •scope and purpose of the whole act, and the evil sought to be remedied, we have no hesitation in saying that the sale of fermented cider by a druggist, to be used as a beverage, is-unlawful, as charged in the complaint and warrant in this case. We find no error, and the circuit court is advised to proceed to judgment. The other Justices concurred.	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Campbell, C. J. Complainant filed his bill to set aside a. ditch assessment, the amount of which was deposited under protest, which defendant Slaght was attempting to enforce under a tax roll, based on an assessment purporting to be made by the other defendant as township drain commissioner. It appears by the bill that the application for the work in controversy was made to the drain commissioners of the townships of Mundy and Gaines jointly; that the work was. prosecuted under their joint supervision; and that the cost of the drain in each township was not charged on the lands in that township, but that complainant is charged with more or less of the cost in Gaines, in which none of his land is situated. The defendants demurred generally for want of equity, and specially for want of parties named. The court below dismissed the bill. As the assessment was put upon the roll of Mundy, and unless paid would have resulted in a cloud on complainant’s title, the case is properly brought, and could not very well have been brought until the proceedings were put in such a shape as to endanger his title. So much of the demurrer as goes tó want of parties is a speaking demurrer, not supported by the bill. That does not show any interest in the persons named as holders of ditch-warrants. Had it done so, there is some doubt how far they •could be treated as necessary defendants as interested in a fund not yet collected or apportioned to them. See Palmer v. Rich, 12 Mich. 414. But it is enough now to say they have no apparent interest on the record. There can be no doubt of the insufficiency of the pr >ceedings. There is no statute which allows joint action by different township commissioners, and such action extending over more than one towuship is not legal. The demurrer must be overruled. We can see nothing which can be gained by further defense; and, as it is itnpos-, sible to maintain the assessment, we shall reverse the decree, and order a decree for complainant as prayed, with costs of both courts. 1 lie record will be remanded for the entry of the proper order making the decree of this Court the decree of the circuit court. The other Justices concurred. See Emerson v. Township of Walker, 63 Mich. 483; Barker v. Township of Vernon, Id. 516.	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Campbell, O. J. This bill, which was filed in February, 1886, seeks to restrain defendant Gertrude Smith from prosecuting 21 ejectment suits, and to compel her to convey to the several complainants an undivided third interest each to the-property involved in the suit in which he or she is interested. There are no joint interests in complainants. Each claim® title to separate land, in which Mrs. Smith sets np her own title to an undivided third. Defendant Gertrude Smith ■demurred for multifariousness in the misjoinder of unconnected causes of action, and the demurrer was sustained, and the bill dismissed. Oomplainants appeal. The case contains a recital of several matters, giving the history of various partnership matters, which are detailed in •a bill formerly filed by defendant Isaac N. Jenness against ¡his co-defendant, Gertrude Smith, to obtain the same relief which is sought here. Jenness v. Smith, 58 Mich. 280. The •present record does not entirely conform to that. But in •order to try the sufficiency of the present bill on the one •question of multifariousness, it will only be necessary to give .an outline of the controversy, giving complainants the .advantage of all the ambiguities. The case, thus abridged, is this: Henry Fish, father of Gertrude Smith, died intestate in May, 1876, leaving her his heir at law, 17 years of age. Before his death, he, and defendant Isaac N. Jenness, and Allen Fish (since deceased) were owners of considerable tracts of land in Michigan, including the lands here in controversy, which are in Lapeer .county. They were all in partnership, under the name of I. N. Jenness & Co., and these lands, although held by tenancy dn common, are claimed to have been partnership property. .After Henry Fish’s death, it is claimed it became necessary to continue the business and manufacture the pine left, so as to close matters out, and, after using such personal assets as •could be spared without stopping the business, the debts •could not be paid off without selling lands. ■ Allen Fish became defendant. Gertrude’s guardian, and, -supposing sales could not be made complete without authority to act for her, applied to the circuit court for the county of St. Clair, and obtained a decree, the substance of which is not .set out, but which, it was assumed, gave him power to act for her. Had the case been otherwise sufficient, it would have been necessary to show just what those proceedings were. After that decree, Allen Fish, for himself and also as guardian, joined in warranty deeds with Isaac N. Jenness and the widow of Henry Fish, to several parties, of the various parcels of land involved in this suit, including the complainants- or their respective grantors, for prices set forth in the bill and the consideration so received was used for partnership purposes. These conveyances were not made at auction or at the same time, but at private sale, and from time to time, during the year 1877. It does not appear when the contracts were made, and it is not averred that the deeds referred to-the lands as -partnership property, or that they were so considered by the purchasers. All that is shown as to the partnership is that the money was used for its benefit. One of' the conveyances is shown to have been made in carrying out an individual land contract executed by the three partners-during Henry Fish’s life-time. This piece of land is averred to have been conveyed for a valuable consideration, the-amount of which does not appear, by Allen Fish, for himself' and as guardian, with Mrs. Fish, to Jenness, who conveyed the land to Charles Bashaw, a complainant, and holder of the-original contract. It is assumed, and is no doubt true, that Fish’s deeds as guardian were void, the sales never having been reported or confirmed. Whether any lands remained unsold does not appear, but is not important now. Gertrude Smith has brought ejectment for her interest as heir at law, each complainant being sued separately for his or her several parcels. The ease, then, is that of a person claiming an undivided interest, which, so far as she is concerned, has never been parted with, who is sued in equity to compel her to surrender and release it to the several grantees of her co-tenants, on the assumption that they owned it all and conveyed it all equitably. The guardian’s transfers are not relied upon, and could not be relied upon, as having any part in the controversy. No equity could arise out of them. They were nullities, or else the bdl had no basis. The legal issue is, therefore, a simple one. Bach of these complainants claims under a purchase which was not made under any legal proceedings, which was separate in time and in consideration from every other sale. The only alleged common equity is that the conveyances from Jenness and Allen F sh, which in law conveyed two-thirds, should be held in equity as conveying the entirety. The bill does not even show a simultaneous origin, or a common fraud or contrivance by which these complainants were deceived. All that can be made out is that they bought of the same parties independently, and their title has failed in the same way; and no fraud or conduct of defendant in any way contributed to their difficulty. This attempt to obtain relief by joint bill goes beyond the broadest doctrine which has been formulated anywhere. There is no common wrong and no privity among them. Their grievances are similar, and that is all that can be said in their favor. The general rule of equity is that every several grievance-must be redressed by a several proceeding. The only recognized exceptions to it (and these are considerably qualified) are instances where there is a single right asserted on one-side which affects all the parties on the otheT side in the same way, or a single wrong which falls on them all simultaneously and together. The instances which are most familiar are rights in common which are resisted by the owner of the estate on which it is charged, tax-rolls assessing all parties on an equal ratio, frauds by trustees affecting all the cestuis que trustent, and the like. Here the grievances are not separate and similar, but single and uniformly injurious. And it has been held in this Court, as well as eh ewhere, that, if there is any distinction in the proportion or character .of the several grievances, there can be no joinder. Kerr v. Lansing, 17 Mich. 34. Where the cause of grievance does not arise out of the same wrong, affecting all at once as well as similarly, there is no foundation for any such joinder. Our own precedents have settled the doctrine sufficiently. In the case of Walsh v. Varney, 38 Mich. 73, each of several complainants had purchased separate parcels under partition proceedings, which were valid as against all who were before the court, but which left out some of the tenants in common. These complainants joined in a bill to restrain ejectment suits brought by the heirs not concluded by the partition, and sought further to have the partition decree opened and extended so as to bind them. But it was held complainants had n<5 common grievance entitling them to join, and also that they had no rights beyond their purchase. This last point bears on another difficulty in this case which is distinct from the question of multifariousness. As the bill states their case, they bought a title in which defendant purported to have an interest in her own right, and which failed apparently from a defect in the guardian’s power, of which, as that decision holds, they had notice. The bill does not indicate that they bought in reliance on the right of Fish and Jenness to convey the whole. In Bigelow v. Booth, 39 Mich. 622, a bill was filed by complainants to redeem, basing their right on a joint interest acquired under execution. It was held that, as this joint title failed, the bill could not stand to help separate interests derived otherwise. That case, however, is not one where the particular point raised here is very clearly presented, although a bill to redeem usually includes all parties to be affected. In Woodruff v. Young, 43 Mich. 548, a bill filed against three defendants for fraud in hindering complainant from getting the settlement of an estate in which they were all concerned, and also for frauds committed by them separately in various dealings arising out of the same family relationship, but not connected with the estate, was held multifarious, because the frauds were distinct. In Brunner v. Bay City, 46 Mich. 236, it was held that parties whose lots had been sold under the same illegal assessment, and bid in by the city, had no longer any grievance for which they could join in a bill, and that each lot-owner had merely the several right to pursue the city as he would any other person having a deed which would be a cloud on his title to the separate lot. That case cannot be distinguished in principle from this. And this was on the ground that thenceforward any claim or assertion by the city against one lot could in no way affect any other lot, but must be prosecuted and defended separately. It cannot help or hinder any one of these complainants to have defendant’s title made out or defeated against any of the rest. Judgment in one of the ejectment suits could not be shown in any -of the others, and could not affect them. It is hardly necessary to increase citations, but they are not difficult to find. In Jones v. Garcia del Rio, 1 Turn. & R. 297, where several persons had been induced to buy scrip in the same loan by a fraud affecting them all in the same way, but by separate purchases, Lord Eldon dismissed their bill on this sole ground. He said that the plaintiffs, if they had any •demand at all, had each a demand at law, and each a several demand in equity; that they could not file a bill on behalf of themselves and the other holders of scrip; and, as they were unable to do that, they could not, having three distinct demands, file one bill; and, upon that ground alone, his lord•ship, without again adverting to the question of public pol icy (which had been raised and discussed), dissolved the injunction. This decision was in 1823. In 1834 the United States Supreme Court decided the case of Yeaton v. Lenox, 8 Pet. 123, on the same principle. There a considerable number of underwriters, taking risks on the same property and voyage, but severally, and not jointly, had paid their insurances to the same bank as holder, on the understanding that the money should be refunded if it turned out they were not liable. This having been ascertained, they joined in a bill against the trustees of the bank, which was in liquidation, its charter having expired, to recover back their funds. Chief Justice Marshall disposed of their claim very briefly, refusing to pass on the equities, which were controverted. He said: “The plaintiffs who unife in this suit claim the return of money paid by them severally on distinct promissory notes. They are several contracts, having no connection with each other. These parties cannot, we think, join their claims in the same bill.” The principle is also recognized in Story, Eq. Pl. § 279, and Daniell, Ch. Pr. 395. It is by no means clear from the allegations in the bill that, the grievances or claims of these complainants are entirely similar in their equities. But this we do not think it necessary to discuss. Their claims, good or bad, are entirely separate, and there is no common grievance. The decree should be affirmed, with costs. The other Justices concurred. “It is a well-settled doctrine that parties purchasing titles under judicial sales purchase just what can lawfully be sold, neither more jnor less, and have no further rights.” Walsh v. Varney, 38 Mich. 76.	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Per Curiam. Certain electors, dissatisfied with the action of the legislature, as evidenced by the provisions of Act No. 304, Pub. Acts 1915 (Senate Enrolled Act No. 93) (1 Comp. Laws 1915, § 9388), seek to invoke a referendum pursuant to section 1, art. 5, of the Constitution, as amended in 1913. Petitions for such referendum having been filed with the secretary of State, that officer, on August 24, 1915, made a proclamation, which, after reciting certain facts as being disclosed by said petitions, continues as follows: “Now, therefore, it is hereby officially determined and declared by me, by virtue of the power in me vested, that the petitions aforesaid have been signed by a sufficient number of qualified electors of this State to authorize and require the submission of said Senate Enrolled Act No. 93 to a vote of the electors of this State at the next succeeding general election for approval or rejection, and that said Senate Enrolled Act No. 93 shall not go into effect unless and until it is approved by a majority of the qualified voters of the State of Michigan voting thereon at said election.” Thereaftei relators filed in this court their petition, which concludes with this declaration and prayer: “The purpose of this petition and of the order to show cause and writ of mandamus being to secure the printing on the official ballot for the November, 1916, general election of only a legally and constitutionally submitted referendum upon said Act No. 304 of the Public Acts of 1915, and such referendum as is qualified and entitled to appear on such ballot by reason of having met and fulfilled the requirements of the Constitution of this State, and that upon such showing of cause and hearing thereon an order may be entered requiring the observance of said provisions of the Constitution in the submission of such referendum and the printing of such ballot: “(50) Your petitioners therefore pray that a writ of mandamus may issue to Coleman C. Vaughan, secretary of State of the State of Michigan, commanding him: “ (A) To recount and recanvass on said referendum petitions filed from the counties of Kent and Wayne, only those signatures of signers thereof who added to their respective signatures their place of residence, street and number in cities having street numbers, and their election precinct. “(B) To recount and recanvass on said referendum petition only these sections which bear the name of the city or county in which it was circulated. “(C) To recount and recanvass on said referendum petition only the signatures of such qualified electors of the city or county where such section was circulated. “(D) To recount and recanvass only those sections which have attached thereto an affidavit of the circulator or solicitor who circulated the said section, which complies with the requirements and provisions of section 1 of article 5 of the Constitution of this State. “(E) To recount and recanvass only those sections of said referendum petition which were filed with the clerk of the county in which it was circulated, and to count and canvass only the names on such section circulated in the counties of Kent and Wayne which were filed at the same time as provided in section 1 of article 5 of the Constitution. “(F) To reject and throw out of the said referendum petition all of the said sections thereof filed from the counties of Kent and Wayne which were returned to said counties for correction as set forth herein. “(G) To reject and throw out of the said referendum petition all and each and every section thereof filed from the counties of Wayne and Kent and shown to be defective and illegal in this petition. “(H) That such other and further order may be made in the premises as justice may require.” Relators’ complaints are addressed to matters appearing upon the face of the petitions, showing, it is alleged, failure to follow the constitutional directions and to matters not appearing upon the face of the petitions, but set up by relators, relating, mostly, to the manner in which the petitions in Kent and Wayne counties were procured, signed, verified, and amended before they were filed with respondent. An order to show cause having been granted, respondent answered relators’ petition, and relators have now applied for an order framing certain issues of fact, 24 in number, the forms of which are proposed. Respondent, by the attorney general, has filed objections to the framing of issues, saying: “I. The case presented by relators’ petition and the answer of respondent thereto is not of such character as to warrant the framing of issues of fact as prayed for in relators’ motion. “II. Conceding, for the purposes of this motion, and for no other purpose, that the issues of fact proposed by relators in their said motion were respectively answered upon submission favorably to relators’ contention, relators would not be entitled to the relief, or any part thereof, prayed for in their said petition. “HI. It appears from said petition by relators that the acts of said respondent sought to be reviewed, and those which this respondent is sought to be compelled to perform under the prayer in said petition and set forth in the order to show cause heretofore issued herein, are acts which this respondent, who is a constitutional officer, is required to perform under and by virtue of the terms of section 1 of article 5 of the Constitution of the State of Michigan, and that the per formance of such acts as have been performed by this respondent under said constitutional provision cannot be reviewed, set aside, revoked, or annulled by any action of this honorable court, or the manner of the performance of said acts be reviewed or interfered with by any action of this honorable court. “IV. That under section 1, art. 5, of the Constitution of the State of Michigan respondent has no right to hear testimony, consider affidavits, or consider any matter or thing not appearing upon the face of referendum petitions submitted to him or filed with him under and pursuant to the said constitutional provision, nor can any findings of fact upon issues framed as prayed for by relators be considered by or be bind-: ing upon respondent. “V. That the act of respondent in canvassing the petitions referred to in the petition of relators and his determination thereof is final and conclusive. “VI. It does not appear upon the face of said petition of relators, or upon the said motion, that the relators, or any of them, have such interest in the subject-matter set forth in said petition, or any part thereof, as to entitle them, or any of them, to the aid of the people’s writ of mandamus against this respondent, to compel the performance of the acts prayed for in the said petition, or any of said acts.” Saving only the one numbered “IV,” these objections, if they are sound,- show that the order to show cause was improvidently granted. Relators, too, suggest the interesting and important point that the constitutional provision is not self-executing. Upon the hearing of this motion we decide only that, unless the facts are settled by agreement, issues may be framed, the determination of which will disclose whether the petitions from Kent and Wayne counties, on file with the secretary of State, appear upon their face to be regular and to comply with the constitutional provision, and whether, if the petitions from both or either of these counties are held insufficient and to be rejected, there will remain a sufficient number of signatures to satisfy the constitutional requirement. The effect of this decision is that the action of respondent should be, in any event, based upon what appears upon the face of the petitions presented to him. We reserve all other questions until the record is completed. An order in conformity with the foregoing, will at once be entered. Ten days after the entry of the order will be given in which to agree upon the necessary facts or propose issues to be framed. Issues, if framed, will be determined by this court, and upon their determination either party may have 20 days in which to file additional briefs. At the end of said 20 days, the cause will be regarded as submitted.	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STEERE, J. This action was brought on April 27, 1911, against defendant, Richardson, as guarantor of Fred G. Horsfall, to recover a balance due plaintiff for goods sold by it to Horsfall, as evidenced by a note which he gave plaintiff on January 14, 1905. A written guaranty by defendant and note by Horsfall, with a credit reducing it to $667.10 and interest, are properly pleaded and fully set out in plaintiff’s declaration and bill of particulars. Defendant pleaded the general issue, with special notice that the guaranty given by him had been revoked and canceled before the indebtedness for which this action is brought accrued; and that the claim was barred by the statute of limitations. The written guaranty given by defendant to plaintiff is as follows: “Vicksburg, Mich., 1 — 12—1893. “American Steel & Wire Fence Co., “Chicago, Ill. “Gentlemen: “In consideration of your extending credit as you may see fit to F. G. Horsfall of Vicksburg, Mich., the undersigned, J. A. Richardson, of Vicksburg, Mich., do hereby guarantee to you and your assigns, the pay ment when due of any and all accounts and indebtedness (not‘exceeding the sum of $1,200.00). for or on account of goods and merchandise sold or advanced by you to said F. G. Horsfall or to his order. “Notes and other evidences of indebtedness and securities may be received by you and your assigns, on account or in settlement of the indebtedness hereby guaranteed, and the same may be renewed and extended as you or your assigns desire, or may be dealt with in any way without notice to the undersigned, without in any way affecting the liability under this guaranty for any amount remaining unpaid in cash to said American Steel & Wire Company. “Notice to the undersigned of sales or advances under this guaranty and of any default on the part of F. G. Horsfall is hereby waived. “This guaranty to be a continuing one, and to remain in full force and effect until the written revocation thereof is received by said American Steel & Wire Company. [Signed] “J. A. RICHARDSON.” It is stated in the charge of the trial court as conceded that this guaranty was executed January 12, 1903, instead of 1893 as inadvertently written. After receiving and accepting this guaranty plaintiff gave Horsfall credit and sold him goods on account from time to time as he desired and ordered them. On October 22, 1904, he was owing plaintiff a balance for goods purchased amounting to $688.19. On January 5,1903, defendant also gave plaintiff a similar guaranty in behalf of a firm located at Scotts, called the Big Four Mercantile Company. In October of the following year he wrote plaintiff in relation to “these matters” as follows: “Vicksburg, Mich., 10 — 22,1904. “ ‘Received Oct. 25, 9:29 a. rn., 1904, “ ‘W. W. F. Dept.’ “American Steel & Wire Fence Co. “Gentlemen: “I find that our boys at Scotts (the Big Four Mercantile Company) are not buying any more fence of you. I wish you would send back the guarantee J sent you. I also gave you one for Fred Horsfall a/c of this place. Are you still holding it? If so let me know all about it as I want these matters all straightened up. If he is settled up with you send it in also. “J. A. Richardson.” To this letter plaintiff replied as follows: “October 28, 1904. “Mr. J. A. Richardson, “Vicksburg, Mich. “Dear Sir: “In compliance with your request of the 22d we herewith inclose guaranty dated January 5th, 1903, covering all accounts and indebtedness between the Big Four Mercantile Co., Scotts, Mich., and this company. “As to the account of Mr. Fred Horsfall, would say that this gentleman is buying regularly from us, items now on our ledgers against him amounting to $688.19, under which circumstances we assume you do not desire return of the guarantee given us under date of January 12th, 1903. “Please acknowledge receipt, and oblige, “Yours truly, “R. S. White, “Credit Manager.” After waiting some time and receiving no answer to its letter, on January 14, 1905, plaintiff accepted Horsfall’s order for and shipped to him at Vicksburg another carload of wire fencing receiving his note therefor, dated January 14, 1905, on February 20, 1905. Plaintiff ultimately collected from him all sums owing it for goods shipped him prior to the last carload for which the note in question was given, but its efforts to collect the balance yet owing on the last carload being unsuccessful this action was brought after much delay and correspondence with him and defendant. The amount due plaintiff from Horsfall is apparently unquestioned, and each party requested a direct ed verdict. The trial court granted neither request, but instructed the jury that the account in settlement of which the note was given had not outlawed when this suit was begun, and submitted to them as an issue of fact whether defendant’s guaranty had been revoked before the last carload of material was sold to Horsfall, saying in part: “The question for you to determine is not necessarily what the plaintiff understood by that letter of October 22d, that is not the question. The question is what did Mr. Richardson intend by that letter of October 22d? Did he intend to revoke, recall and rescind that guaranty? If he did so intend, then did he express that intention in proper, appropriate, apt words, language such as would fairly and reasonably convey that intention to the average mind — to a fair, average business mind?” The jury rendered a verdict for defendant, and judgment was entered thereon accordingly. The court correctly instructed the jury as to the statute of limitations. It is true as pointed out by defendant that the last goods were sold to Horsfall January 14, 1905, over six years before this action was begun, but his note given therefor fell due May 1, 1905, and suit was brought April 27, 1911; and there was no such unauthorized extension as might operate to release a guarantor, for the guaranty itself expressly gives authority to take notes for any indebtedness which it covers and to renew or extend the same as plaintiff or its assigns may desire. There was no issue of fact raised by the evidence for submission to the jury. The controlling facts in the case are not in dispute. Both sides requested a directed verdict. Though questioned, it may be conceded that defendant wrote the letter of October 22d, with intention to revoke his guaranty as to Horsfall; but his animus revocandi standing alone did not revoke and availed him nothing, unless he in clear and un equivocal language which could not reasonably be misunderstood gave plaintiff notice of his present purpose to then terminate the guaranty. The test is not what he meditated, but what he declared. The alleged letter of revocation first dealt with the subject of defendant’s guaranty for the business concern at Scotts, which he requested returned because they were not any longer dealing with plaintiff. He then inquired in regard to the guaranty he gave for Horsfall, asked plaintiff to let him know all about it, as he wanted “these matters” all straightened up, and concluded with the request to send Horsfall’s guaranty also “if he is settled up with you.” While he expresses a desire to have these matters all straightened up, he does not intimate when or how; he nowhere states that he terminates or révokes the continuing guaranty he had given and will no longer be bound by it, and asks for its return only on the contingency that “he has settled up with you,” in the same letter in which he recalls the other because the parties have ceased doing business with plaintiff. The communication manifestly falls short of a distinct and definite notice of revocation of his written guaranty in such plain and unequivocal language that it could not be otherwise construed. In Lanusse v. Barker, 3 Wheat. (16 U. S.) 101, it was said of doubtful expressions in a subsequent letter relative to a written guaranty: “It was in the defendant’s power to have revoked his assumption, contained in the letter of the 9th, at any time prior to its execution, but it was incumbent on him to have done so, avowedly, and in language that could not be charged with equivocation.” Plaintiff did not, however, arbitrarily stand on its interpretation of defendant’s alleged letter of revocation of October 22d (received October 25th), but with reasonable promptness, and before doing any further business with Horsfall, made reply, returning the guar anty of the parties “not buying any more fence” of it, fully answered all questions as to Horsfall, stated how his account stood, and that “the gentleman is now buying regularly from us,”, advised defendant of its understanding of his desires and construction of his letter, concluding with a request for acknowledgment. Defendant did not answer this letter, which he admits receiving. With his attention thus promptly called to plaintiff’s interpretation of it, erroneous, as he now claims, he remained silent when he should and could have spoken, until additional goods were ordered by and sent to Horsfall. He knew that Horsfall then owed and continued to do business with plaintiff on the strength of his guaranty, not returned as he requested because the conditions under which he asked it did not exist. Thus advised, candor and good faith demanded that he then explicitly declare himself if it was his intent to revoke. Even if his construction of the letter was warranted in any event, by his silence he tacitly accepted the construction which plaintiff submitted to him. Under the undisputed facts found in this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs to plaintiff, and a new trial granted. Stone, C. J., and Kuhn, Moore, Brooke, and Person, JJ., concurred. Ostrander and Bird, JJ., did not sit.	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Stone, C. J. This is an action of assumpsit commenced by declaration. In the introductory part of the declaration is the following averment: “For that whereas, the said plaintiff avers that on, to wit, the 9th day of March, 1915, he was the owner of an undivided one-third of a promissory note, a copy of which is hereafter set forth.” The remainder of the declaration consists of the common counts alleging that the indebtedness accrued to the plaintiff, without alleging any assignment or transfer to the plaintiff, from any person. At the foot of the declaration there was the following notice: “To the Above-Named Defendant: Take notice that on the trial of the above cause, the plaintiff under the money counts, will give in evidence a certain promissory note, a copy of which is given below.” Signed by attorneys for plaintiff. “Copy. “February 1, 1901. “One year after date I promise to pay to the order of Charles Jensen sixty-three hundred ($6,300.00) dollars, with interest at°the rate of 5 per cent, per annum. Value received. “$6,300.00. J. E. Gamble.” On the back of the note there were three indorsements of interest. The plea was the general issue with a special notice of the statute of limitations, and claiming, among other things, the following: “This defendant will further insist in his defense that this is bringing a suit for a part only of a claim, and cannot for that reason be maintained. Defendant will further show that the plaintiff has no right to bring said action in its present form.” To maintain the issue, the plaintiff offered in evidence the promissory note, a copy of which appears above, and also introduced the files in the probate proceedings in the matter of the estate of Charles Jensen,deceased (he died July 1, 1905), including the will of Charles Jensen, which devised all his property, both real and personal, to Anna Jensen. The probate proceedings showed the appointment of Burt Wickham, as administrator of the estate of Charles Jensen, and contained the inventory showing that the total property belonging to .the estate was the note in suit. Plaintiff also introduced the final account of Burt Wickham, as administrator, showing that the note of $6,300 was on hand. The final order of distribution in the estate of Charles Jensen was introduced, and, in part, it was as follows: “It further satisfactorily appears to the court that after the death of Chas. Jensen, his wife, Anna Jensen, the sole legatee under the will of the said Chas. Jensen took over said note, and retained it during her lifetime, and that at her death (she died March 5, 1912), it passed to the custody and control of Francis W. Fincher, the executor of the estate of the said Anna Jensen, and that at the time of her death she was the owner of said note, and all rights under said note, and that said note now belongs to, and is a part of, the estate of the said Anna Jensen.” The petition of Francis W. Fincher, the executor of the last will and testament of said Anna Jensen, showing that said estate had been fully administered, and that he desired to file his final account and be discharged, and that the residue of the estate be distributed, was offered and received in evidence. The final order of distribution in the Anna Jensen estate was received in evidence, and was in part as follows: “It satisfactorily appears to the court that there is now in the hands of said executor the sum of $298.06, and a certain note dated the 1st day of February, 1901, for the sum of $6,300 given by J. E. Gamble to Charles Jensen, which note at her death belonged to the said Anna. Jensen. It further satisfactorily appears to the court that the final account of said executor should be allowed at the sum of $65 for his services, besides his •expenditures, and that the residue of said estate, including said note, belongs equally to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have and own one-third; it is therefore ordered, adjudged, and decreed that * * * the residue of said estate be distributed equally between Lewis Jensen, Maggie Gulumbo, and Annie Gamble, and that the said note for $6,300 and the interest thereon shall belong to the said Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have a one-third interest therein.” It also appeared that the will of Anna Jensen, deceased, which had been duly admitted to probate, bequeathed to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each one-third of any property which she might own at the time of her death. At the close of the plaintiff’s case, counsel for defendant moved the court for a directed verdict in his favor, for' the reason that the case as made was a splitting up of an indivisible cause of action, and an attempt to sue upon and recover only a portion of the note. The motion was overruled and an exception duly taken. The court directed a verdict and judgment for the plaintiff for $2,450 and costs. The defendant brings error. The first two assignments of error are to the following effect: (1) That the court erred in overruling defendant’s motion to direct a verdict for defendant for the reason above stated. (2) That the court erred in holding and determining that the statute gave a right of action for an undivided interest in the note in suit. The last assignment of error raises objection to the specific language of the charge as to the liability of the defendant in this action. It is the claim of the appellant that this was the splitting up of an indivisible cause of action, and as such cannot be maintained by the plaintiff, and the following cases a,re cited in support of ‘that position: Dutton v. Shaw, 35 Mich. 431; Allison v. Connor, 36 Mich. 283; Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Mercantile Ins. Co. v. Holthaus, 43 Mich. 423 (5 N. W. 642) ; Milroy v. Mining Co., 43 Mich. 231 (5 N. W. 287); Vincent v. Moore, 51 Mich. 618: (17 N. W. 81); Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (53 N. W. 394, 32 Am. St. Rep. 494); Blackburn v. Blackburn, 132 Mich. 525 (94 N. W. 24); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033). In Dutton v. Shaw, supra, this court said: “The principle which prevents the splitting up of causes of action, and forbids double vexation for the;same thing, is a rule of justice, and not to be classed: among technicalities. It was intended to suppress serious grievances.” In Continental Ins. Co. v. Lumber Co., supra, it was said: “It is a well-settled rule that an entire claim or demand arising out of a single transaction, whether in, thé nature of a contract or tort, cannot be divided into separate and distinct claims, and the same form of action brought for each, or two suits maintained, without defendant’s consent,” and many cases are cited. .On the other hand, it is the claim of the plaintiff that he had the right to bring and maintain this suit for his share of the note, as adjudged by the decree of the probate court, under section 9444, '3 Comp. Laws, as amended by Act No. 177, Pub. Acts 1903 (3 Comp. Laws 1915, § 13916), which reads as follows: “In such decree the [probate] court shall name the persons and the proportions or parts to which each shall be entitled; and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any other person having the same, or any part thereof. * * *” Counsel cite authorities from other States, also Perrin v. Lepper, 34 Mich. 292, and Michaud v. Lumber Co., 122 Mich. 305 (81 N. W. 93), and they urge that defendant, not having pleaded nonjoinder of plaintiffs, is in no position to raise the question here urged. There can be no doubt that the rule of law against the splitting of a single cause of action into several actions is founded upon the plainest and most substantial justice; that is, that litigation should have an end, and that no person should be unnecessarily harassed with a multiplicity of suits. The rule that a single cause of action cannot be split and made the subject of several actions applies, as a rule, where the cause is in favor of several persons jointly or against several persons jointly, and since a plaintiff having an entire indivisible demand cannot divide it into distinct parts, and maintain separate actions on it, so he cannot accomplish the same result by an assignment of a part of his demand, thereby enabling others to do what he could not do. 1 R. C. L. p. 341, and cases cited; 23 Cyc. p. 439 et seq. It would be unjust to hold that where A. has given his promissory note for a stated amount, all of which is due at one time, he should be subjected to three or perhaps ten suits upon such individual obligation or contract. There can be but one action on a single demand. We are of the opinion that there is nothing in the statute above referred to which modifies or abrogates the rule just stated. It cannot be successfully urged that there is no way in which the rights of the plaintiff and defendant can be determined, except by maintaining this action. The record does not show that the executor of the estate and will of Anna Jensen has been discharged. If he has been discharged, an administrator de bonis non could be appointed to bring the suit, or, in case the other claimants will not join as plaintiffs, they may be made defendants in a suit in equity, and the whole controversy be brought before the court and determined in one suit. Mercantile Ins. Co. v. Holthaus, supra; 4 Cyc. pp. 28, 29, and cases cited. We cannot agree with plaintiff’s counsel that it was necessary for defendant to have pleaded the nonjoinder of plaintiffs in abatement. Where persons who ought to be made plaintiffs, in an action on a joint contract, are not joined as such, the objection need not be urged by plea in abatement, or even by special notice, but is fatal on objection, at any stage of the action. Blackburn v. Blackburn, supra, and cases there cited; 1 Green’s Mich. Practice (3d Ed.), § 261. The rule is otherwise in actions of tort, as stated in Michaud v. Lumber Co., supra, and in Achey v. Hull, 7 Mich. 423. We think that the trial court erred in not directing a verdict and judgment for the defendant, for the reason above stated. The judgment of the court below will be reversed, and no new trial granted. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	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Stone, C. J. This case is before us upon exceptions before sentence. The defendant was convicted of a violation of the local-option law, in that he did, on August 18, 1915, at the city of Battle Creek, county of Calhoun, sell a quantity of beer and whisky to one Leonard Forester, he, the said defendant, not being then and there a druggist or registered pharmacist, etc. The complaint was made by one Robert C. Towsley, a deputy sheriff, upon information and belief. The warrant issued by the justice of the peace contained the following recital : “And whereas, on examination on oath of the said R. C. Towsley and George Aldrich by me, the said justice, it appears to me, the said justice/that said offense has been committed, and there is just cause to suspect the said Tom Curran to have been guilty thereof: Therefore in the name of the people of the State of Michigan, you, and each of you are hereby commanded forthwith to arrest the said Tom Curran, and bring him before me to be dealt with according to law.” An examination was had before the justice at which Robert C. Towsley, Leonard Forester, and George Aldrich were examined on oath in the usual manner. Upon the examination, counsel for the defendant made a motion to quash the complaint and warrant, for the reason that the affidavits, before the issue of the warrant, of Forester and Aldrich were taken before Charles R. Young, a notary public, and that said witnesses gave no testimony under oath before the said justice to sustain the complaint signed by Robert C. Towsley, and that the justice had no jurisdiction to issue said warrant for the arrest of defendant. This motion was denied by the justice, and the defendant was held for trial in the circuit court. In the circuit court, when arraigned at the bar in open court, the defendant waived the reading of the information which was in due form, and stood mute, whereupon, by order of the court, a plea of not guilty was entered, a trial was ordered and a jury duly impaneled and sworn, and the trial proceeded.. Upon the trial of the case it appeared upon the cross-examina tion of George Aldrich, a witness for the people, that he made the affidavit before Charles R. Young, a notary nublic. Upon the cross-examination of Robert C. Towsley the following occurred: “Q. I show you the complaint in this case and. ask you if that is your signature? “A. Yes, sir. I signed that complaint before Judge Hart [the justice] ; I signed that complaint on information and belief.” Upon redirect examination he testified: “Q. What did you base your complaint upon? “A. Mr. Forester’s and Mr. Aldrich’s affidavits. “Q. I wish you would state to the jury, whether or not these young men were before the magistrate, Judge Hart, at all. “A. Yes, sir. “Q. Did he put them under oath and talk with them? “A. He talked with them; we talked with Judge Hart, and they both talked with Judge Hart, and he told me to take them in to Charles Young, and have an affidavit made. “Counsel for Defendant: I wish to make a motion if the jury may be excused. “The Court: In their examination before Justice Hart, were they examined by the justice under oath9 “A. Don’t think it was under oath. “The Court: Just took their unsworn statements? “A. Yes, sir. “The Court: Were you present when Justice Hart examined these young men? “A. Yes, sir. “The Court: So far as you remember was the oath administered? “A. I do not think they were under oath. He merely talked with them there, and we went in and took their affidavits in front of Mr. Young, and then they went in and swore to it. “The Court: Went in where to swear to it? “A. I think Young swore them to .it.” The justice was called as a witness by the defendant. He testified, under objection by the prosecuting attorney, that he issued the warrant which bore his signature. “The warrant was written out by Mr. Young, the clerk, before I signed it. It is made out in the usual form. The body of the warrant is in the handwriting of Mr. Young. I did no writing on the warrant myself, except to sign it. I don’t know whether I read the complaint and warrant over before I signed them or not. I would not say that I did. “Q. Is that warrant based on information and belief? “A. Yes, sir. The parties who made the affidavits came in there; I think Towsley brought them in there, and I talked with them. They were put under oath by Young, I think. Young is the man who swore them as to what knowledge they had. I don’t think they were sworn before me, but I would not say positively. * * * Our usual custom has been in most all complaints taken down there, to have affidavits brought to me and from them I have issued the warrants. “Q. Without examining the witnesses yourself? “A. Sometimes we examine them, and then other times we do not. I think this is one of the cases in which I did not swear them, as the affidavits were made before Charles R. Young.” It appeared that Mr. Young was the clerk of the court over which the justice presided. It also appears that the city of Battle Creek is operating under a charter which provides for a “justice’s clerk,” appointed in accordance with the provisions of Act No. 171, Pub. Acts 1911. Section 3 of the act, among other things, provides that (3 Comp. Laws 1915, § 14758): “Each clerk appointed under the provisions of this act is hereby empowered to take complaints in criminal causes and swear the complaining witnesses thereto.” The above facts appearing upon the trial, defendant’s counsel made a motion that the information be quashed, the jury dismissed, and the defendant discharged for the reason that the complaint was made by said Towsley on information and belief, and that the only information given by Forester and Aldrich in support of the complaint was in the form of a sworn statement to Charles It. Young, a notary public, and no sworn evidence was given by said witnesses, or any other witnesses before the said justice before the warrant issued. The motion was denied, and defendant duly excepted. The defendant having been found guilty by the jury, he has brought the case here for review, and the sole assignment of error is that the court erred in overruling the motion to quash the information and discharge the defendant. Counsel cite and rely upon the following decisions of this court: People v. Colleton, 59 Mich. 573 (26 N. W. 771); People v. Bechtel, 80 Mich. 623 (45 N. W. 582); People v. Heffron, 53 Mich. 530 (19 N. W. 170); Brown v. Hadwin, 182 Mich. 491 (148 N. W. 693, L. R. A. 1915B, 505), In the Colleton Case the complaint was taken before, and the warrant was issued by, the clerk of the police court of Grand Rapids, and this court held such action involved judicial action which could only be taken by a court, and could not be performed by the clerk. That is quite a different case from this where, at most, all that is claimed is that the affidavits supporting the complaint were made before the clerk, who had statutory authority to take complaints and swear the complaining witnesses in criminal cases. But it is not necessary to pass upon this question. It is the contention of the prosecuting attorney that the recital in the warrant in the case at bar gave jurisdiction to the justice of the peace, and that such recital that he examined a witness under oath in addition to the complaining witness cannot be impeached. He further contends that it is against the weight of authority to hold that the jurisdiction acquired by the justice of the peace, as shown by the recitals in the warrant, may be rendered void by the uncertain testimony of a fleeting witness however long after the examination was held; and it is further contended that parol evidence is inadmissible to contradict such recitals in the warrant. We do not deem it necessary to pass upon the question whether such recital may or may not be contradicted. We think that the question of the jurisdiction of the examining magistrate was not a proper issue upon the trial of the case upon its merits. After the arraignment of the defendant, the entry of the plea of not guilty, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the justice. The issue before the jury was the guilt, or innocence of the defendant. The impropriety of going into such a collateral question as the jurisdiction of the justice is clearly shown by the examination of the justice himself, who, at the most, is uncertain as to whether he swore the man Aldrich himself, or whether the clerk swore him. The jurisdiction of the circuit court, obtained in the manner above stated, could not be destroyed because the complaining witness testified that he did not have personal knowledge of all the facts stated in the complaint. To permit this would be to allow oral testimony taken, as in this case, long after the complaint was made, to oust the court of jurisdiction given in the manner provided by the statute. We are therefore clearly of the opinion that this motion, even if there were any merit in it, ought to have been made before the jury were sworn. This entire subject-matter was outside the merits of the case. After the jury had been sworn and the trial of the issue as to the guilt of the defendant had been begun, it was too late to raise the objection as to the proceedings before the justice. This has been so often ruled by this court that it hardly seems .necessary to cite cases. The real merit of the matter is, that all preliminary questions about the jurisdiction of the justice should'have been settled before the jury were sworn. It was not a matter which went to the merits of the trial. People v. Schottey, 66 Mich. 708 (33 N. W. 810); People v. Haas, 79 Mich. 449 (44 N. W. 928); People v. Payment, 109 Mich. 553 (67 N. W. 689). In this casé it was held that where a complaint and warrant for an offense not cognizable by a justice of the peace are valid in form, the question whether the evidence taken before him justified his conclusion to issue the warrant, is not triable at the circuit. People v. Rush, 113 Mich. 539 (71 N. W. 863); People v. Brott, 163 Mich. 150 (128 N. W. 236). In the last-cited case it was held that on a motion to quash, first presented after a jury had been sworn, based on the ground of want of testimony before the examining magistrate, no error was committed in refusing to discharge the respondent. People v. Davis, 171 Mich. 241 (137 N. W. 61). In the Bechtel Case, cited by defendant’s counsel, it was held that the court will presume that the justice examined the complainant and his witnesses orally, where such fact is recited in the warrant purporting to have been issued upon such complaint and examination. We are of opinion that there is no merit in the question presented, and the conviction of the defendant is affirmed, and the court below should proceed to judgment. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	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Clark, J. Plaintiff Moffit was injured. The injury was caused by concurrent negligence of Adrian Endtz and Grand Rapids Railway Company. The verdict was $7,500 against Endtz and no cause of action against the company. Judgment was entered on the verdict, which, reviewed on error in this court, was reversed. Moffit v. Railway Co., 228 Mich. 349. The cause came on for second trial in the superior court without a jury. In an opening statement, counsel for plaintiff said: “Some question has arisen as to the effect of the reversal in the Supreme Court of the judgment, as to whether that reversal reverses the judgment that was rendered against defendant Endtz, as well as the judgment that was rendered in favor of the railway company. _ The railway company has made a proposal to plaintiff to procure its release from the suit, which proposal is satisfactory to plaintiff, providing that upon acceptance of that proposal the railway company may be released from the suit, the suit dismissed as to it without costs, and judgment taken against the defendant Endtz in lieu of the former judgment which was rendered against him for substantially a similar amount, and plaintiff is willing that judgment be entered against the defendant Endtz, and a judgment of dismissal against the railway company, without costs to either party; the judgment against Endtz to be for the sum of $3,250. As I understand it, the testimony has all been taken before the court and a verdict has been rendered by one jury against Endtz upon' that record. There was no question about the liability of Endtz. In the view of counsel for plaintiff the action of the Supreme Court did not reverse the former judgment, but because there may be some question about that plaintiff desires a judgment entered at this time against Endtz in place of the other judgment, so that the record will be clear.” Plaintiff was called as a witness and his counsel asked of him and he answered as follows: ■ “Q. And now you are ready to go ahead with the case against both defendants? “A. Yes, sir.” And thereafter plaintiff testified at length of the fact and manner of injury and of his damages. At the conclusion of proof, plaintiff’s counsel said to the court: “Now, if your honor is willing to just hold this in abeyance until we can close the matter with the railway company, we will submit a stipulation asking for judgment dismissing them, and then we will leave to the court the matter of rendering judgment against Endtz for this difference. If the court is willing to do that, that is what we are asking, Mr. Paley, we are willing to give your man credit for the amount paid on the judgment against him before, and we now ask judgment against him for the difference, $3,250.” Defendant railway company paid to plaintiff $4,250 and a stipulation by attorneys for plaintiff and the railway company was then made and filed: “In the above suit defendant Grand Rapids Railway Company, while denying all liability to plaintiff for any of the matters set up in plaintiff’s declaration, nevertheless, in order to avoid the expense and risk of litigation, has made a settlement by paying to said plaintiff a sum of money satisfactory to both parties hereto and in that manner having procured the consent of plaintiff to a dismissal of said cause as to defendant railway company. “Therefore, in consideration of the foregoing and upon the agreement of said parties through their respective attorneys, it is hereby stipulated and agreed that an order may be entered in said cause dismissing said suit as to defendant Grand Rapids Railway Com-, pany without costs to either party, without prejudice, however, to the rights of plaintiff against defendant Endtz.” Over objection of counsel for Endtz judgment was then entered for plaintiff and against Endtz alone for $3,250. This judgment later on motion and by order was vacated and the cause dismissed as to Endtz. To review the order plaintiff brings error. Whether the judgment in the first trial survived reversal it is unnecessary to determine. The proceedings show that it was treated as vacated. It was not pleaded by defendant Endtz as a bar to the second trial. Plaintiff proceeded against both defendants on the original declaration and gave evidence to support its averments. Under the authority of McArthur v. Oliver, 53 Mich. 299, we must treat, for the reason stated, the first judgment against Endtz as reversed. Defendants were joint tort-feasors. 1 Cooley on Torts (3d Ed.), 247; Lindsay v. Acme Cement Plaster Co., 220 Mich. 367. If defendants had been joint debtors (which they were not), as for a sum of money due by certain and express agreement, or upon a single judgment against them, then what was attempted here by plaintiff might perhaps be sustained because of section 14585, 3 Comp. Laws 1915. And see Rohrabacher v. Walsh, 170 Mich. 59; 27 A. L. R. 805, note. If plaintiff in separate suits had taken several judgments, one against Endtz for $7,500, and one against the railway compahy for $4,250, and had collected the smaller judgment and accepted the avails, both judgments would have been satisfied except as to costs. The plaintiff might have had several judgments, but he can have but one satisfaction. Blackman v. Simpson, 120 Mich. 377 (58 L. R. A. 410); Freeman on Judgments (5th Ed.), § 1126. A release of a cause of action as against one of two or more joint tort-feasors operates as a release of all. This is on the theory that the release amounts in law to a satisfaction of the demand. But what of plaintiff’s attempted reservation of a right to proceed further against Endtz? It was said in Carey v. Bilby, 129 Fed. 203: “Sometimes, however, as in the case in hand, a release executed in favor of one wrongdoer is accompanied with the reservation of the right to sue others who were jointly concerned in the wrong, and in such cases the question has frequently arisen, how shall such an instrument be interpreted? Shall the reservation of the right to sue others be ignored, and the instrument treated as raising a conclusive presumption that full compensation for the wrong has been'made, as though it were a technical release under seal, or shall the reservation of the right to sue others be taken to mean that full compensation has not been received by the injured party, and that he merely intended to agree with the released party not to pursue him further, but without releasing his cause of action against the other wrongdoers, or admitting that he has received full compensation for the injury? With reference to this question the authorities are not in accord. Some courts are disposed to hold, and have held, that when such an instrument contains apt words releasing one of the wrongdoers, it operates to release all, and that any clause inserted therein reserving a right to sue others after one has been released is repugnant to the release, in that it defeats, or attempts to defeat, the natural legal effect of the instrument; and that it should therefore be ignored. McBride v. Scott, 132 Mich. 176 (61 L. R. A. 445, 1 Ann. Cas. 61, 102 Am. St. Rep. 416) ; Abb v. Railway Co., 28 Wash. 428 (68 Pac. 954, 58 L. R. A. 293), and cases there cited. Other courts hold, however, that such an instrument should be given effect according to the obvious intent of the person executing it, and that it should not be treated as a technical release operating to destroy his cause of action as against all of the joint tort-feasors, but rather as a covenant not to sue the party in whose favor the instrument runs.” The McBride Case is decisive of the question. After reviewing authorities, it was there held: “We are of the opinion that the better rule is that contended for by defendants in this case; that to admit of a settlement with one tort-feasor under such circumstances as are here presented, and to hold that a reservation such as is here attempted saves the right as to other tort-feasors, would open the door for the plaintiff in any case to acquire by successive settlements more than just compensation; or, as is said in Brown v. Kencheloe, 3 Cold. (Tenn.) 192: ‘The plaintiff in many instances would operate upon the fears of the defendants, and get from each full damages for the trespass committed.’ ” And see Lindsay v. Acme Cement Plaster Co., supra. The release of the railway company amounts in law to a satisfaction of plaintiff’s demand. Affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	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Brooke, J. This is an application on the part of both relators for an order requiring respondent, the circuit judge of Wayne county, to vacate or modify an injunction issued by him upon the filing of the bill of complaint by one Anna Gornetzky. It appears that said Anna Gornetzky secured a judgment (affirmed in this court) against her father-in-law, Harris Gornetzky, and her mother-in-law, Matilda Gornetzky, and that at the time she commenced her action against the parents of her husband they were possessed of certain real estate and a small printing business. She charges in her bill that while she was prosecuting her action against the Gornetzkys, they, in combination with defendant Harry Goodman and others, conspired together to place their property beyond her reach as a judgment creditor. It is charged that to this end relator the Maple Press Printing Company was formed, and a chattel mortgage on the property of said company executed in favor of relator Harry Goodman. Upon the filing of the bill, relators and the other defendants named in said bill of complaint filed several answers under oath, denying the charges of fraud and conspiracy contained in complainant’s bill of complaint. Upon the hearing of the application for a preliminary injunction the court below enjoined: (1) The Maple Press Printing Company from incumbering, disposing of, or otherwise dealing with a certain Oldsmobile automobile bearing license No. 37,-805. (2) Harris Gornetzky and Lasser Gornetzky from taking, as salary or otherwise, any sums of money from the assets of the Maple Press Printing Company. (3) Harry Goodman from attempting in any way to transfer or foreclose the chattel mortgage given, on October 3, 1914, to him by the Maple Press Printing Company. Respondent having denied the motion to vacate or modify the injunction so granted, this application for mandamus followed. It i.s disclosed by the record that at the time of the hearing of the application for a preliminary injunction and in denying said application, the learned circuit judge offered to proceed to an immediate hearing upon the merits. Defendants in the chancery proceeding (relators here), however, declined to proceed to an immediate hearing, urging prior engagement of counsel and other reasons for such refusal. It is strongly urged by counsel for respondent that this refusal on the part of relators to proceed to a hearing upon the merits should be considered as a further evidence of their bad faith in the premises. While defendants’ conduct in this regard is certainly open to the imputation of bad faith, we are still of the opinion that the injunctive relief granted went too far. The relator the Maple Press Printing Company is now a duly organized corporation. Harris Gornetzky and Lasser Gornetzky are two of its officers, and appear to be actively engaged in its interest in the publication of a small Jewish periodical. It is shown by the record that Harris Gornetzky’s salary was $25 a week, and that of Lasser Gornetzky $15 per week. The injunction prevents them from withdrawing from the corporate funds these amounts, which, it is asserted, is necessary for their several maintenance and support. It must be remembered that the complainant in the original case is neither a stockholder nor a creditor of the Maple Press Printing Company. We are of opinion that the injunction should be modified, permitting the relator the Maple Press Printing Company to pay the salaries of Harris Gornetzky at $25 per week and Lasser Gornetzky at $15 per week, said payment to commence from the- entry of the order in this court, and to continue until the final determination of the case in the court below. The case being at issue, the complainant should have little difficulty in securing an early hearing under the rules of the court. Modified as indicated, the injunction will stand. No costs will be granted upon this motion. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.	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Stone, C. J. The bill of complaint herein was filed in October, 1914, to set aside for alleged fraud a real estate mortgage and accompanying promissory note made and executed by complainant to the defendant on December 16, 1911, for $5,000. The matters leading up to the making of these instruments are somewhat in dispute, but the following facts appear: Jacob Woodman, a resident of Akron, Tuscola county, died on November 21, 1911, at the age of 81 years. He left an estate, which, after the payment of his debts, was of the value of upwards of $20,000, which consisted of the farm inventoried at $10,000 and personal property aggregating $10,000 and upwards, tie left a will bearing date June 10,1911. Under the terms of the will the complainant was devised the farm above referred to, and also all live stock and farm tools and implements owned by decedent at the time of his death, and there was bequeathed to two sisters of the complainant $250 each; and it was provided that the residue of the estate should be equally divided between the defendant and her sister, Maud Gilmore. In case of no will the estate in question would have been divided into four equal portions, one to the defendant, one to Maud Gilmore, her sister, one to the complainant and her two sisters as children of a deceased daughter, and one portion to the children of Cynthia Jubar, another deceased daughter of said Woodman. The last-named children are referred to in the record as “the Jubars.” They were, by the terms of the will, cut off from any share of the estate. The complainant had lived in the home of Jacob Woodman from the time she was 14 months old to the time of his death, and the death of his wife, which occurred 19 days after his death; and the will provided that complainant should live with and care for testator and his wife upon.the farm during the life of each of them. At the time of the death of said Woodman, complainant was 24 years of age and was married, living with her husband upon the said farm. The bill of complaint states that the said will was offered for probate to the probate court of said county, and came on for hearing on or about December 15, 1911, and the hearing was adjourned from time to time until January 16, 1912. The bill further states that the defendant and her sister, Maud Gilmore, being dissatisfied with the said will and claiming that it was unjust, and that the testator was mentally incompetent, and that they intended to contest the probate thereof, induced the said complainant to go with them to the office of an attorney at law, at Bay City, and there to execute the real estate mortgage above referred to in settlement of their claim, and that the said Maud Gilmore was to share equally with the said defendant in the division of the proceeds of said mortgage. The bill further states that the sole consideration, if any, for making said promissory note and mortgage was that no contest of said will by any person could possibly be "made, and that no contest of said will would be made, and that said attorney, acting for said defendant, represented to said complainant that in no event would a contest of said will be made by any one if the mortgage was so given, and that relying upon said assurances of said attorney, and because of the threats and false promises of said defendant and Maud Gilmore, complainant did sign said promissory note a,nd mortgage; that when the hearing of the probate of said will came on in the probate court there was a contest made by the sisters of the complainant and the Jubar heirs. The bill further represents that at said hearing the said attorney who had drafted said note and mortgage assured complainant that, as there was a contest being made of the probate of said will, said promissory note and mortgage had been destroyed by him. The bill alleges that upon the hearing in the probate court, which involved a large expense to complainant, said will was duly allowed for probate; that thereupon the 'contestants appealed to the circuit court for said county, and a trial was had of such appeal at the September term, where said will was again sustained, in which complainant was again involved in a large amount of expense in securing witnesses and counsel which necessitated the expenditure of a large amount of money, exceeding the sum of $1,200; that at the hearing in the circuit court the said attorney, who claimed to have had possession of said note and mortgage for the defendant and her sister, again assured complainant that said mortgage had been destroyed, that said mortgage was recorded in the office of the register of deeds of said county immediately after the trial in the circuit court, to wit, on October 8, 1912, having been, left for record by said attorney of said defendant and Maud Gilmore. The bill further states that at the time of making said promissory note and mortgage, the said defendant and Maud Gilmore and their said attorney well knew that a contest of said will would be had, and that the assurances of said attorney as to who could contest a will were by him well known to be false, and intended to mislead complainant, he well knowing that complainant would rely upon his statement as to the law, and that he and said defendant and her sister connived together to procure from complainant the said promissory note and mortgage by false, fraudulent, and misleading representations, and without any consideration whatever therefor, and that said mortgage and promissory note were in fact obtained by said cunning devices, and without intending to give, or giving, any consideration therefor. After praying that the defendant be required to answer the bill of complaint, the bill further prayed that the said defendant might, by order and decree of the court, be required to deliver up for cancellation the promissory note and mortgage mentioned M the bill of complaint, and that she be enjoined by order and injunction of the court from in any manner selling, assigning, or disposing of the said note and mortgage, and, further, that said note and mortgage be declared void and of no effect, and that said defendant be required to discharge the same of record, concluding with a prayer for general relief. The answer of the defendant denies substantially the averments of the bill, and states that the said note and mortgage were given solely because the defendant and her sister, Maud Gilmore, agreed to make no contest of said will, and agreed to allow said will to be admitted to probate, and specifically denies that any representation whatever was made to the effect that no contest could possibly be made to said will by any person, or that no contest of said will would be made by any one, and denied that said attorney assured complainant that in no event would a contest of said will be made by any one if said mortgage was given, and denied that said mortgage was given because of any threats and assurances, as alleged in said bill. By the answer the defendant also admitted that a contest of said will.was made in the probate court for said county, the contestants appealing to the circuit court, where they were defeated; but defendant denied that it was at all necessary for complainant to employ counsel, or go to any expense whatever in said proceedings, or that she was compelled to do so; that she did the same voluntarily and without consulting defendant, and any sums paid out by her were unnecessary, as defendant employed counsel to assist at the trial in establishing said will, and that counsel so employed had been paid by the estate, and that if complainant had paid out any such sum as claimed by her, the same was unnecessary and unreasonable. Defendant further, by her answer, admitted that she did not attend the hearing on the probate of said will, and averred that she never had been asked to contribute to any expense incurred by complainant. Upon the hearing of the instant case, it was undisputed that at the time of the execution of the note and mortgage, and as a part of the same transaction, the following agreement was entered into by the parties: “Whereas, Jacob Woodman departed this life on the 21st day of November, 1911, leaving surving him Minnie Hall Sellers, granddaughter, party of the first part herein, and Maud Gilmore and Ella Perry, daughters, parties of the second part herein, and leaving a last will and testament, which said last will and testament is now on file in the office of the probate court for Tuscola county, Michigan, awaiting probate thereof; “And whereas, the parties hereto think that the said Jacob Woodman did not in the said will make a fair and equitable distribution of his property as between the parties hereto, and whereas the parties of the second part hereto being dissatisfied with the terms of the said will propose to contest the probate of the same for the reason that the said will does not make a fair and equitable distribution of his property, and also for the reason that they claim that at the time the said will was made the said Jacob Woodman was incompetent to make the same; “And whereas, the parties hereto are desirous of avoiding a contest of the said will and coming to an amicable and friendly settlement of all property rights; “Now, therefore, in consideration thereof, it is agreed as follows: The said party of the first part hereby agrees to pay to each of the parties of the second part the sum of two thousand dollars, and to pay to Myrtle Hall Landon and Deborah Hall Hammel, her sisters, each the sum of two hundred and fifty dollars, and as provided for in paragraph three of said will, and also to pay an amount not to exceed five hundred dollars toward funeral expenses, nursing and doctors’ bill incurred in the last sickness of the said Jacob Woodman and Rhoda Woodman, his wife, now deceased. It is further agreed that each of the parties hereto shall each pay one-third of all probate and administration expenses of the will of the said Jacob Woodman. In consideration of the said payments to be made as aforesaid by the said party of the first part, the said parties of the second part hereby agree to make no contest and consent to the admitting to probate of the will of the said Jacob Woodman. “Witness the hands of the parties hereto this 16th day of December, 1911. “Minnie Hall Sellers. “Maud Gilmore. “Ella Perry. “In presence of: “M. L. Courtright. “James Gilmore.” “State op Michigan, ) __ . “County of Bay [ss” “On this 16th day of December, 1911, .before me, a notary public in and for said county, personally appeared Minnie Hall Sellers, Ella Perry and Maud Gilmore, to me known to be the persons who executed f oregoing instrument, and acknowledged that they executed the same as their free aet and deed. “M. L. Courtright, “Notary Public, Bay County, Michigan. “My commission expires April 1, 1913.” Upon the hearing there was a sharp conflict in the testimony as to the representations made by Mr. Courtright, it being claimed by the complainant, as alleged in the bill, that Mr. Courtright (who seems to have been a relative of some of the parties, and upon friendly terms with all of them, he having transacted business for the testator in his lifetime), represented to complainant that if this settlement was made and said note and mortgage given, there could be no contest of the will; that neither the Jubar heirs nor any other persons interested could contest the will in case the mortgage was given, and that he subsequently represented, when a contest was made, that the note and mortgage had been destroyed. These representations were denied by Mr. Court-right and other witnesses who were present, who testified that what he did say was that, in his opinion, the Jubar heirs and others could not successfully contest the will, and that he never represented or stated to the complainant or her attorney that the note and mortgage had been destroyed. It appears, we think, from the evidence that the defendant and her sister, in good faith, intended to contest the probate of the will, claiming that it was not only unjust, but that the testator was mentally incompetent to execute it, and that the consideration for the making of the note and mortgage was that they should desist from contesting the will, and consent to its probate. It is undisputed that they not only did not contest the probate of the will, but that they rendered such assistance as was in their power, by way of furnishing documentary evidence and the employment of counsel, in the allowance of said will, an,d the same was- duly allowed in both courts, and the contestants were defeated. In our opinion the burden of propf upon these contested questions was not sustained by the complainant at the hearing. The consideration for the note and mortgage appears to have been that the defendant and her sister, Maud Gilmore, should make no contest of the will, but should consent to the admitting of the same to probate. It is, we think, well settled in this State that legatees under a will, and persons having such an interest in the estate as to entitle them to contest the instrument, may make valid agreements to forbear a contest, and such contracts are favored by the law when made in good faith. Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154). A contract, whereby one interested in defeating the probate of a will agrees to interpose no objection thereto, is not void as against public policy, unless made eollusively and in fraud of other parties interested in the estate. Grochowski v. Grochowski, 77 Neb. 506 (109 N. W. 742, 13 L. R. A. [N. S.] 484 and note, 15 Am. & Eng. Ann. Cas. 300). Neither by the pleadings, proofs, nor briefs of counsel has the question been raised whether this promissory note and mortgage were void as opposed to public policy, so as to bring the case within the principle announced in Conklin v. Conklin, supra, and we have not considered that question for the reasons stated, and we herein express no opinion upon that question. Upon the hearing in the court below the bill of complaint was dismissed and complainant has appealed; and it is urged by complainant’s counsel that if this court should find that there was not a total failure of consideration for such note and mortgage, that at least relief should be granted complainant to the extent of allowing her two-thirds of the expense of the litigation in establishing said will under that portion of the agreement, above quoted, which reads as follows: “It is further agreed that each of the parties hereto shall each pay one-third of all probate and administration expenses of the will of said Jacob Woodman.” The answer does not claim the benefit of a cross-bill, and does not ask to enforce or foreclose this mortgage. In our opinion the pleadings are not so framed, as to entitle the complainant to this relief in this suit. The bill is not framed according to any theory of an abatement or reduction of any portion of said mortgage for the reason urged; and, as the record stands, there appears to be no warrant for modifying the decree below, as asked for. Agar v. Streeter, 183 Mich. 600, 609 (150 N. W. 160, L. R. A. 1915D, 196). Should the mortgagee proceed to enforce or foreclose this mortgage, this defense under the agreement would doubtless be open to complainant. It appears that no part of the mortgage debt has been paid, and that four installments of $500 each, with interest, are now past due. This record discloses a sharp conflict in the testimony of the attorneys who tried the instant case in the court below. They both testified in the case. Other counsel for the defendant in the brief filed in this court, in commenting upon this conflict of testimony, asks this court to go entirely outside the record and inquire as to the character and standing of the respective attorneys, by consulting Martindale’s American Law Directory, and their respective ratings therein are stated at length in the brief. This is a most unwarranted and improper statement to appear in a brief filed in this court. Such practice is indefensible and cannot have the sanction of the court. Such reference should be eliminated from the brief, and perhaps would justify the court in striking the entire brief from the case. The decree of the court below is affirmed, with costs to the defendant. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	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Champlin, J. This is an action of replevin, brought by the plaintiffs as copartners under the firm name of "West Bay City Manufacturing Company against the defendants, to obtain possession of certain white pine saw-logs. The declaration was in the usual form in replevin. The defendants interposed a plea in abatement, and upon this plea issue was joined. Objection is raised upon the argument that the plea does not possess the requisite allegations as to certainty required in pleas of this nature: No demurrer was interposed, and the objection comes too late after judgment. The gist of the plea is that a prior writ of replevin had been issued out of the same court, for the same property as that described in this writ, at the suit of said William C. Busch, one of the defendants in this suit, against the said Spencer O. Fisher, together with George L. Burtis and Timothy Nester, as defendants; that the writ was executed and the property delivered to Busch, and he executed and delivered to the sheriff the requisite bond; that Busch filed his declaration in that suit, and the defendants therein appeared and pleaded the general issue; that this is a cross-replevin, and the writ was issued at the suit of the same Spencer O. Fisher, together with Albert A. Crane and- Frederick Cole, and against the same William O. Busch, together with Arthur Hill, Eben N. Briggs, and Edward E. McCarty, and the same property retaken and turned over to the plaintiffs in this suit; and that this suit seeks to raise the same issue as exists in the former action, and is between the same parties, or their privies. Hpon the trial a written stipulation was filed, admitting the following facts: “ 1. That the logs involved in this suit, and described in the writ and declaration therein, were taken from the possession of Timothy Nester, September 16, 1885, by the sheriff of Marquette county, upon a writ of replevin in due form, and with the proper affidavit attached thereto, duly issued out of said court on that day, wherein William O. Busch, one of the defendants in this case, was plaintiff, and Timothy Nester, Spencer O. Fisher, and G-eorge L. Burtis were defendants. Said Spencer O. Fisher is the same person who is one of the plaintiffs in this case, and the logs involved in this cause are the same as those involved in said first suit, and described in the writ and declaration therein. “At the time of the taking of said logs on said writ of replevin, on the sixteenth day of September as aforesaid, said Timothy Nester was in the possession thereof as the agent of the West Bay City Manufacturing Company, a partnership composed of the plaintiffs in this suit, who then claimed to be the owners of said logs, and they were on that day delivered by said sheriff to said William C. Busch on his giving to said sheriff a bond as required by law. “ Said first replevin suit was pending on the merits, and was-undetermined, though no service had been made on the defendant Fisher, at the time this suit was commenced. Issue on the merits was thereafter joined in said first suit, and a verdict and judgment were rendered therein on the second day of January, 1886, in favor of the plaintiff, William O. Busch, against the defendants-Timothy Nester and Spencer O. Fisher, they having appeared and pleaded therein, and a writ of error has been duly sued out of the Supreme Court by said Nester and Fisher to remove said cause to the Supreme Court. “ 2. The writ of replevin in this cause was sued out in favor of the plaintiffs herein, and against the defendants, on the seventeenth day of September, 1885, the said plaintiffs-claiming the said logs as partners doing business under the name of the West Bay City Manufacturing Company, and said logs were on the same day taken from the possession of said Busch by the sheriff upon said writ of replevin, and delivered to the plaintiffs in this case; they having given said sheriff a bond as required by law. . “ 3. It is further admitted, for the purposes of the trial of the issue joined on the plea in abatement in this cause, but for no other purpose, that the plaintiffs in this cause, before the sixteenth day of September, 1885, purchased from said Timothy Nester, who before that claimed to be the owner thereof, all the right, title, and interest said Timothy Nester had in said logs, and that, after such purchase, said plaintiffs, as such partners, and at the time of the commencement of said first replevin suit as well as of this suit, claimed to be the absolute owners of said logs, and entitled to the possession thereof, and were the owners of all the title thereto that said Nester had before their said purchase.” The other testimony in the case consisted of the files and records in the two replevin suits.' The judge charged the jury as follows: “Gentlemen of'the Jury. The plaintiffs in this case, Spencer O. Fisher, Albert A. Crane, and Frederick Cole, brought a suit in replevin against William C. Busch and others to recover from the defendants certain pine logs or timber set forth in the declaration. The history of this timber, as appears by the stipulation of facts in this case^ is this: Timothy Nester had possession of this property, in connection with others here, in the water at Marquette. William C. Busch claimed the right to the possession of that property. On the sixteenth day of September, 1885, he brought his suit against Timothy Nester, Spencer O. Fisher, and Mr. Burtis to recover' possession of these logs. The writ was placed in possession of the sheriff. The sheriff proceeded to execute the writ, took possession of the logs, had them appraised, and William O. Busch, the plaintiff in that suit, gave the replevin bond required by law to be given in such cases; and thereupon the property was turned over to the plaintiff in the suit by the sheriff. Spencer O. Fisher, it appears, one of the defendants in that suit, had associated with him Albert A. Crane and Frederick Cole, under a partnership carried on under the name of the West Bay City Manufacturing Co., at the time of the taking of these logs from the possession of Mr. Nester. The stipulation shows that Mr. Nester took possession of these logs as agent of Spencer O. Fisher and his copartners. On the following day after the replevin by Mr. Busch, viz., on the seventeenth day of September, 1885, Spencer O. Fisher and his copartners brought their writ of replevin against William C. Busch and others to recover back the possession of the property. The defendants in this suit claim that that was what is known as a cross-writ of replevin,, and I charge you, gentlemen, under the facts in this case,. Spencer O. Fisher being one of the defendants in the first suit, and one of the plaintiffs in this suit, that this suit is across-replevin, and the plaintiffs cannot maintain it. “It is the law that where one party claiming the possession to pioperty has brought his writ of replevin, given his bond, as between all the defendants in that suit and those who are associated with them, the title to that property is to be decided in that first suit, and the plaintiff who has brought that suit, and given his bond as required by law, is entitled to the possession of it until his rights are litigated in court in that suit; and any attempt on the part of either of the defendants in that suit, by associating copartners or other persons with him, to maintain another suit to get it back, will not be tolerated in any court of law. It is therefore a cross-writ of replevin, and the plaintiffs in this case had no right to bring this suit in replevin, and I charge you, therefore, to find a verdict for the defendants in this case.” The only errors assigned are the following: 1. In the oral charge of the circuit judge to the jury, where said circuit judge says: “Under the facts in this case, Spencer O. Fisher being one of the defendants in the first suit, and one of the plaintiffs in this suit, that this suit is a cross-replevin, and the plaintiffs cannot maintain it.” 2. In • said oral charge, where said circuit judge said: “ I charge you, therefore, to find a verdict for the defendants in this case.” We think the evidence shows that this suit is a cross-replevin. The real issue to be tried in both suits involves the title to the logs. No possessory rights independent of ownership are involved. In the first suit, Busch claimed the title as against Nester, Fisher, and Burtis. The plaintiffs in the second suit claim to be the absolute owners as against Busch and his co-defendants. It appears that they claim such ownership as partners, and through a purchase from Nester prior to the issuing of either writ, and that Nester was in possession as their agent. It is plain, therefore, that the title of Busch, and the title of the firm of which Fisher was a member could be litigated in the first suit, and that he could show the title and ownership of the property in the firm of which he was a member, and this would constitute a complete defense, and authorize a judgment for a return of the property. No more can be done in the second suit. The same issue is involved,, and is made out by the same evidence. That the parties to both suits are not identical is unimportant, unless such new parties claim rights or interests dif ferent from or independent of those claimed by the parties to the first suit. We perceive no error in the charge of the court, and the judgment is affirmed. The other Justices concurred. See Busch v. Nester, 62 Mich. 381; also, 38 N. W. Rep. 458.	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Morse, J. The plaintiff sues for the value of a horse killed by the cars upon the track of defendant. The action was brought in justice’s court, and appealed therefrom to the circuit, where, upon a trial before the court, without a jury, the plaintiff recovered. The horse escaped upon the track from the premises of plaintiff through a defective fence. The plaintiff claims it was the duty of the defendant to erect and maintain this fence, which the defendant denies. This is the sole point to be determined. From the findings of fact by the circuit judge, Hon. Chauncey Joslin, it appears that the plaintiff keeps and cultivates a farm in the township of Frenchtown, in Monroe county, through which the defendant’s railroad track and right of way extend. On the aforesaid premises of the plaintiff the track of the defendant’s road crosses a highway; it does not cross at right angles, but diagonally. When the defendant fenced the track it acted upon the assumption that the highway was four rods in width, and on each side of the highway built fences along a line two rods distant from the center line of said highway, as surveyed, to the cattle-guards upon the track. The highway as used, however, was not four rods wide, and the plaintiff’s road fence was only fifteen feet and two inches from the center of the highway, as traveled and surveyed. This left a jog or break between the highway fence, as built by the defendant, and the road fence of the plaintiff, of 25.5 feet. The plaintiff built a pole fence extending from the corner of his fence across this distance to the fence of the railroad company. The defendant assumed that it was no part of its duty, under the law, to maintain a fence across this space, and the plaintiff therefore kept it up until the killing of the horse. The horse escaped through this pole fence, and was killed on the track between the cattle-guards. The highway in question was laid out in 1832, by two commissioners of Frenchtown; but the records as found in the town clerk’s office are defective, and show no jurisdiction obtained by said commissioners. But the highway has been used and traveled for over 40. years. The center line appears by such records to have been surveyed, which survey is now on file in the clerk’s office. This center line was used as the guide of the defendant in erecting its highway fence. Where the railroad crosses the highway is a turnpike, which is built almost exactly upon the center line of the highway, as surveyed in 1832. The highway is not four rods wide anywhere between fences along its whole route. The land of the plaintiff has been fenced to the highway, as it was at the time of the killing of the horse, for a period of 30 years or more, and the pole fence was built by the plaintiff about 15 years ago. The defendant contends that under the statute law of this State all public roads have been required to be four rods wide since 1827 to the present time, excepting about one year, from 1857 to 1858; that this law applies to highways that have become such by user, as well as to those regularly laid out under the statute; and that the road fence of the plaintiff must be considered as an encroachment upon the highway, and that he could not acquire the land, within the four-rod limit of the highway, by user, as against the public. The plaintiff claims that the highway was not regularly laid out, and is a public road by user only; and that it ex- Ms as sucb highway just so far as it has been used, and can extend no further than the user. It makes but little difference, practically, as regards the rights of the contending parties, whether the highway in question was regularly laid out under .the statute or acquired by user. If regularly laid out in the first instance, it appears very ■clearly from the finding of the circuit judge, who finds the facts as stated by a witness, S. M, Bartlett, that the land included within the plaintiff’s fence has never been opened and worked as a highway; and the plaintiff by long occupation has acquired the title to such land as against the public. It has been settled in this State that a highway can be partially discontinued by non-user, and that it stands, as against long possession, no better than any other property. Gregory v. Knight, 50 Mich. 61, 64. On the other hand, if it is a highway by user only, it can extend no further than it has been used. Wayne Co. v. Miller, 31 Mich. 447, 449; Pratt v. Lewis, 39 Id. 7, 12; McKay v. Doty, 63 Id. 581. We are referred by the counsel for defendant to section 1315 of Howell’s Statutes, which provides as follows: “All highways regularly established in pursuance of existing laws; all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not; and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or.more, - — shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use shall be four rods in width; and, where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rods in width on each side of such lines.” —In support of the proposition that this highway if acquired by use must be four rods wide. But the clause in the statute making such roads four rods wide was adopted in 1881, after the highway in question had become a public road by user. It was held in Bumpus v. Miller, 4 Mich. 159-163, that a highway acquired by user under the provisions of the Constitution would be four rods in width, unless the dedication or donation implied by the user was expressly or impliedly restricted by the owner. In this case the fact that the road was never opened and worked by the authorities inside of the line of the plaintiff's fence, but outside of it; that the public use and travel have also been outside of such fence, the plaintiff for over 30 years cultivating and holding the premises as his private property, and subject to no easement of the public, — is sufficient to rebut any presumption of any donation or dedication of the same to the public, and conclusive evidence of an intention to restrict the road to the space outside of his fence. The Legislature, in my opinion, in 1881, could not alter or change the vested rights of the plaintiff in the premises. It would be taking the land of the plaintiff, without compensation, for public use, and without his consent. McKay v. Doty, 63 Mich. 581. The line of the highway must be considered to be the fence of the plaintiff. It was, therefore, and is the duty of the defendant under the law to erect and maintain a proper fence along the line of the pole fence through which the horse escaped. The judgment of the court below is affirmed, with costs. The other Justices concurred. See Lyle v. Lesia, ante, 16.	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Morse, J. The respondent was arraigned in the superior court for the city of Grand Rapids upon an information charging him with having committed an assault upon one John Bork with the felonious intent to do great bodily harm less than murder. Before the commencement of the trial, he, by the leave of the court', withdrew his plea of not guilty, which had been entered pro forma; and his attorneys moved the court to quash the information on the. ground that the respondent had never had a preliminary examination, or waived such examination, as provided by law, and that the witness claimed to have been examined upon an alleged examination did not sign his evidence given upon such examination. The motion was overruled, and the respondent required to-plead, and, thus constrained, he pleaded not guilty. The trial then proceeded, and he was convicted upon such trial of the offense charged in such information. The case is brought, here upon exceptions before judgment, under the statute. The verdict must be set aside, and the respondent discharged. The record shows that, upon the examination of said John Bork, the principal witness against the respondent, in the police court of the city of Grand Rapids, and the only witness whose testimony upon such examination appears in the record, the said Bork did not sign his testimony, so given in the said police court, as required by the positive terms of the statute. The case is governed by the previous decisions of this Court. People v. Smith, 25 Mich. 497; People v. Chapman, 62 Id. 280; People v. Gleason, 63 Id. 626. It is not necessary to consider the other errors alleged to have occurred on the trial. The respondent is discharged because he has had no preliminary examination, or waived the same; but this discharge will not prejudice new and further proceedings against him for the crime charged. Campbell, C. J., and Champlin, J., concurred. Sherwood, J. I do not think this conviction should be reversed for the cause stated in this opinion, but I concur in the result.	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Morse, J. In this case the court below directed a verdict for the defendant, and the sole issue in this Court stands upon the correctness of this ruling. The plaintiff lives in Trenton, and, at the time of his injury, was 30 years of age. He had worked in the stock-yards at Grosse Isle for the defendant about a year. His duty there was to unload stock from the cars, feed them, and reload them. The switchmen, with a pony engine, would bring the cars containing the stock to him. He had worked also at the same business in the stock-yards in the city of Detroit. He had been employed in all about two years. The stock-yards were in the railroad yards of the defendant. On the twelfth day of November, 1882, he was set to work by an agent of defendant as second switchman in making up trains in the yard, shifting cars with a pony engine in the railroad yard at Grosse Isle. He had no experience in switching at the time of this employment. The yard-master hired him on Saturday evening, and told him he would show him how to do the work. He did show him the next day, but said nothing to him about a defective draw-head in the engine, which plaintiff claims was the cause of the injury. The front draw-head of the engine was a perfect one, but the one at the rear was defective. It was a double draw-head, but the division between the upper and lower openings had a Y or wedge-shaped piece broken out, so that upon a casual glance it looked like a single opening. The plaintiff went to work with this engine on Monday, November 13, and did day duty that week. This engine had no tender attached, and no cow-catcher. It was used in pulling cars in the yard, and would be coupled to them, at both ends. The two divisions in the draw-heads were used to meet the heights of different cars without crooked links. Plaintiff’s day duty consisted in following this engine, and doing as he was ordered in opening and shutting switches or coupling cars. The cars were mostly coupled, however, by the head switchman, known as the conductor. During such day duty plaintiff testifies that he coupled cars in front, — on the front part of the engine, — but made no coupling at the rear end, where this defective draw-head was situated. He had never examined that draw-head, and did not know that it was defective; supposed it to be all right. On the night of November 19, 1882, he was switching in the yard. About 11 o’clock the yard-master directed him to-go to switch No. 1 and draw out a car. He went, and, in-coupling the car to the rear end of the engine, got his hand caught in this defective opening, or break in the division between the two openings, and crushed, losing three fingers,, and otherwise maiming the hand. He says he stood upon the tail-board or foot-board of the engine. He had a lantern in one hand, had set the pin up in the draw-bar, and signaled the engine to back. As the car came up, without looking at the draw-head particularly, he undertook to enter the link. He claims it caught in this-broken wedge-shaped place. The force of the engine twisted it sideways, and caught his hand. He had never before looked at the end of this draw-bar; and, when he endeavored torn ake the coupling, says: “I didn’t look at the draw-bar. I supposed it was all right.” “ Q. If you had looked .for it, you could have seen it? “ A. I couldn’t see it from the step. You couldn’t have seen it unless you had looked right into the draw-bar. * * “ Q. You say you had every reason to suppose that the draw-head was all right? “A. Yes, sir. “ O. So you didn’t care to see for yourself? “ A. No, sir. cc Q. Then you gave the signal to move back? “A. Yes, sir. “ Q. If you had had an opinion that there was a break in that draw-head, you might have made the coupling, and not been hurt? “A. Yes, sir; if I had known about it, I would have looked out for it.” On redirect he further testified: “ Q. Y ou could have made this coupling without any accident if you had known of the break? “A. If I had known of it, — that there was danger, — I should have looked out for it, — if I had known it was broke.” Plaintiff also testified that he could not look into the draw-bar from where he stood when coupling, and that this was the first time he had attempted a coupling at this end of the engine. John Dougherty, a witness for the plaintiff, testified that he was employed in the yard at the time of the injury to the plaintiff, and was familiar with this engine and draw-bar, and that the yard-master and conductor knew it was broken; that witness knew it was broken a month before the accident. On cross-examination he said the break could be seen as one looked at the draw-head; that he and others used it, and, by taking care of it, it worked all right. The plaintiff, being recalled, further testified as follows: “ Q. I think you testified yesterday, in answer to Mr. Russel’s question, that you might have observed this break in the draw-head under some circumstances. Now, will you state whether you desire to explain more fully in reference to Uiat answer you gave? [Objected to by defendant’s counsel.] “ Q. Will you state about your ability to see that break? “ A. If I could have seen it, I might not have noticed it. “ Q. Why not ? “ A. For I might not have known but what it was a per- feet draw-head; for there is a draw-head with one hole, and one with two; and I might not have known but what it was a perfect draw-head. “ Q. In the condition that draw-head was at the time you made that coupling, will you state whether or not it was extremely dangerous? “ A. It was, by what I heard by the railroad men after-wards. They said it was dangerous. “ Q. Will you state whether or not a casual glance at that draw-head would have disclosed its defect to you? “ A. Yes, sir; it would. “ Q. I don’t think you understand my question. You have just stated that you probably would not have observed the break in the draw-head, inasmuch as you are not familiar with draw-heads? “A. Yes, sir. “ Q. Now, will you state whether or not it would have been necessary for you to have made a close inspection of the draw-head in order to have discovered its defects? “A. It would have been if I could not see it. The slot was inside of the draw-head, — broken clear inside of the draw-head. It was hollowed off in the back part, — open holes. “ Q. As I understand your answer, this apartment in the draw-head, making a distinct compartment, was so broken out that if you had merely looked at it you might have supposed it was a perfect draw-head with one opening only? “A. Yes, sir.” The plaintiff offered to prove, by additional witnesses, that the engineer and conductor of the pony engine and the yardmaster had knowledge of this defect in the draw-head; that the draw-bar was not changed before this accident because the defendant had none to put in its place; he also offered to prove the pecuniary damage suffered by him on account of said injury, — all of which testimony it was conceded could be given; but, granting it, the court held that the plaintiff was not entitled to recover, and therefore declined to receive it. The circuit judge thereupon ordered a verdict for the defendant. The court below was right in this direction. The plaintiff was a man of mature years, and had been about railroads and cars enough to know that coupling cars was, at best, a dangerous employment, unless proper care was taken. He made, or undertook to make, a coupling in a draw-head that he had never looked at, although working about the engine for nearly a week. He undertook to insert the link without caring to look or glancing even casually at the draw-head, acting on the supposition that it was all right. This was in itself great negligence. It is not clear, by any means, that the break caused the accident. If it happened as he says it did, and the link caught in the break, then it is apparent that if the break had not been there, and he had undertaken to put the link in, precisely as he did, without looking, it would have come in contact with the end_of the division between the two openings, and produced precisely the same result. The force of the engine would have thrown the link up sideways, and caught his hand. There was no more danger with this break, if he had his eyes upon it, than there was without it. The injury happened solely because he did not look to see where he was holding the link with reference to the openings in the draw-bar. It cannot be said, even if the defective draw-bar contributed to the injury, that plaintiff •employed the usual and customary means to guard against accident. The plaintiff endeavors to excuse himself for not looking, on the ground that, if he had so looked, he might not have known but what it was a perfect draw-head, “for there is a draw-head with one hole, and one with two,” and he might have thought it only had one opening. This is altogether too speculative to avail him against his obvious carelessness in not looking at all. He did not even give it a “casual glance.” It was his duty to exercise reasonable care in the performance of his work. In working five or six days about this engine, without examining this draw-head, which he must have known he was liable to use at any moment, and at tempting to make his first coupling without even looking to see if he was holding the link so it would enter the opening, or to notice whether it had one opening or two, he was not exercising any degree of care, and was grossly negligent. He must suffer because of his own carelessness, and cannot recover from the defendant. The judgment of the circuit court is affirmed, with costs. The other Justices concurred.	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Sherwood, J. The bill in this case is filed by the complainants, who are the heirs of James P. Pendill, deceased, against the defendants, to remove a cloud from the title of some mining property described in the bill, situated in the county of Marquette, and to restrain by injunction the removal by the defendant of machinery from the mine, which had been previously leased to John Burt, with the land containing the same. The mine had been opened and worked when the lease was given by Mr. Pendill and wife to Mr. Burt, which evidently contemplated the discovery of ore at other places on the leased land, and that it should be opened and mined. The lease was made on the first day of May, 1880, and was to continue 19 years and 8 months, and was to be in force that length of time, provided John Burt, his representatives or assigns, should pay to James P. Pendill, his representatives or assigns, 50 cents per gross ton as, a royalty for each and every ton of 2,240 pounds of iron ore mined and shipped or carried away from the land in question. It is further provided in the lease that John Burt, his representatives or assigns, should pay to James P. Pendill, his representatives or assigns, at least 82,000 per annum in each and every year, as a royalty or rental, irrespective of the amount of ore that should be mined, and whether the ore actually mined, at the rate of 50 cents per ton royalty, would equal that amount or not. It was also agreed that John Burt, his representatives or assigns, should, on the fifth of each month, report to Pendill, his representatives or assigns, the full amount of ore mined and carried away from the land during the previous month, and that he should at the same time pay for the iron ore so mined at the rate mentioned. It also appears from the lease that it was agreed that said Burt, and his representatives or assigns, should pay all taxes, general and special, that should be levied upon said property during the continuance of the lease. The lease also provides that if Burt should fail to pay the said royalty as specified, or any part thereof, or should be behind in his payments, according to the terms specified,— “ For the space of ten days thereafter, or in case of the non-performance oj any of the covenants made by the said Burt, then, and irom thenceforth, it shall and maybe lawful for the said Pendill, his heirs and assigns, into the said demised premises, or any part in the name of the whole, without any previous notice whatever, to re-enter, and the same to have again, repossess, and enjoy.” Mining operations were carried on under this lease for a time by individuals. After the Union Mining Company was organized, and on the sixteenth day of December, 1880, the lease was assigned to it, and the defendant carried on the mining business on the leased property until February, 1883, when it was suspended by the mining company. At the time of the suspension, the mining company gave a chattel mortgage on the mining tools, engine, etc.j to Bichard Bryant, in trust, to pay employes of the company to the amount of $5,-192.47. Hiram A. Burt was the president and manager of the company at that time. On the twenty-first day of June, 1883, the property covered by the Bryant mortgage was sold, at public sale, to Sarah B. Burt, wife of Hham A. Burt, for the sum of $2,000. On the ninth day of February, 1883, the company gave a mortgage on its leasehold interest to one Henry Merry, as trustee, to secure the sum of $5,000; and upon the first day of September, 1883, the company executed to Matthew H. Maynard, as trustee, notes amounting to $50,000, secured by mortgage upon this same leasehold interest. Both Maynard and Merry, as trustees, are made defendants in this case. The property was all kept on the leasehold premises. Sarah B. Burt claims the Tight, through- Hiram A. Burt, to remove the property purchased at the chattel-mortgage sale, and also the right to remove the engine and hoisting drums placed by Mr. Pendill at the mine upon the property before the lease of the property was made; and Mrs. Burt was made a defendant, that she might be enjoined from making such removal. During the time the company carried on the business of mining it expended about $10,000 in equipments, and about the same amount in explorations, both in the mine and on other parts of the property, and the lessor received about $13,000 in royalties. No rent, taxes, or royalty was paid by the company after the year ending May 1, 1883, and it failed to make any monthly reports, as required by the lease, thereafter. The defendant company having ceased all mining business upon the premises, and removed the pumps and pipes out of the mine, the property presenting the appearance of having been abandoned, the lessor, James P. Pendill, went to the property, and, not finding it in the custody of any one, or any one claiming control thereof, without giving any notice to any one, took possession of the property, locked up the boiler-house and engine-room, and other buildings, with all the machinery and tools therein; and, from that time to the present, he or his heirs have continued such possession. Mr. Pendill died in March, 1885, and the complainants, his widow and heirs, bring this suit. The foregoing contains the material facts in the case. Considerable testimony was taken in open court, before Judge Grant, who heard the cause, and rendered a decree therein declaring the leased property free and clear of all liens and incumbrances, and the lease canceled, and null and void. The decree further dismissed the bill against Sarah B. Burt, without prejudice to complainants to have their right® as against her adjudicated at law. Costs were given to the complainants against the defendant company, and against, them in favor of Mrs. Burt. The Union Mining Company alone appeals. The provisions of the lease under which Mr. Pendill proceeded to recover possession of his property, and to relieve it from the incumbrance of the lease, are found in the following clause. After stating the terms and various provisions, it says: “ Provided always, and these presents are upon the express-condition, that if it shall so happen that the rent above reserved, or any part thereof, or the taxes or assessments to be paid by the said party of the second part, be behind and unpaid at the times or on the days above mentioned for the payment thereof, and for the space of ten days thereafter, or in case of the non-performance of any of the covenants made by the said party of the second part, at any of the times mentioned for the performance thereof, thence and from thenceforth it shall and may be lawful for the said parties of the-first part, their heirs and assigns, into said demised premises, or any part in the name of the whole, without any previous-notice whatever, to re-enter, and the same to have again, retain, repossess, and enjoy, and the said parties of the second part, its successors, and all other tenants and occupants of the-said demised premises, or any part thereof, thereout and therefrom, utterly to expel, put out, and remove; and from and after such re-entry made, this lease, and every part, thereof, shall cease and be absolutely void as respects the-covenants to be performed by the said parties of the first, part.” There is no question, I apprehend, in this case, but that-the defendant company failed to perform the covenants contained in the lease. Counsel for defendant, however, contend that, even if this: be so, such failure was not alone, nor with all that was done-by Mr. Pendill, sufficient to annul the lease, and destroy the-rights of the defendant company as tenant of the property-in question. It will be noticed, that the parties to the lease expressly provide, in ease oí failure to pay rent, taxes, or royalty, that the lessor may, “ without any previous notice whatever,” reenter, repossess, retain, and again enjoy the demised premises ; and it further provides that such re-entry and possession may be made by “entering upon a part of the premises in the name of the whole,” and further provides that, “from and after such re-entry made, this lease, and every part thereof, shall cease and be null and void.” Upon a full inspection of the record, we are satisfied that, after the failure of the defendant company to perform the covenants of the lease on the part' of the lessee, the lessor made such entry, and when such entry was made and possession taken the lease became void. Any other construction would, be doing gross injustice to the language used in the lease, and to the expressed intention of the parties. It is insisted by the learned counsel that a demand for the rent or royalty due was absolutely necessary before the lessor could lawfully re-enter. This was true at common law, and is equally so by our statute (see Com. Dig. “Rent,” D 3 (a); 18 Vin. Abr. 482; Bac. Abr. “Rent,” I; Doe v. Wandlass, 7 Term R. 117; How. Stat. § 8295); but, both at common law and by statute, such demand can be waived by the parties. No notice of re-entry, or of the intention to re-enter, was ever necessary in either case. It is very evident that something was intended to be waived wherein the lease says that the lessor may re-enter and repossess himself of the premises “ without giving any previous notice whatever.” It certainly was not notice of an intention to re-enter, because there was nothing of that kind to be waived. There was nothing but the demand of payment of rent or royalty to be waived, and it is quite manifest to us that the notice that he was required to pay the rent or royalty, which was then in arrears, was what was intended to be and really was waived. A demand for rent is no more or less than a notice that payment is required to he made. It will be seen that the clause in the lease waives every kind of notice. We think the position taken by the learned counsel for the complainants is correct, that— “ The contract itself governs as to the mode of the termination of the lease, under common-law rules; but, the lease being terminated, the mode of procedure to get possession by summary action is necessary to gain possession, and should be in accordance with statutory requirements. In this case, notwithstanding the lease gave the lessor the right to terminate the lease without any notice whatever, if it became necessary to take proceedings to gain possession, it must have been by summary proceedings, or by an action of ejectment, according to the requirements of statute. But that does not affect the question of forfeiture of the lease. That is simply the question of the mode of gaining possession. The lease being an optional one with the lessor to forfeit or not for condition broken, it was simply necessary that the lessor should, in a positive manner, assert his election to declare the lease forfeited, and that ended the lease. This he did, by taking possession when he found the property in the condition that it was, and by telling the general manager of the defendant company that he had nothing further to do with the property.” The re-entry and taking possession by the lessor was the mode agreed upon by the parties to the lease by which the election to forfeit should be declared. The lessor had the right, and it was his duty in the first instance, to resort to it, and, if prevented in so doing, it 'was his privilege to adopt any other lawful mode, and take the statutory or any other appropriate legal proceedings to obtain possession. He was not, however, prevented from taking possession under the terms of the lease. If there was no provision in the contract as to the mode of making known the election to forfeit, it would have to be done in accordance with the recognized rules of the common law, as modified by the statute. We think the record shows the possession of the lessor rightfully and not forcibly taken. “The party entitled to the possession of property has the right to take it in any manner that does not involve a breach of the peace, and it was never the design of the statute to take away that right.” Hyatt v. Wood, 4 Johns. 150; Jackson v. Farmer, 9 Wend. 201; Low v. Elwell, 121 Mass. 315; Mussey v. Scott, 32 Vt. 82; Sterling v. Warden, 51 N. H. 217; Stearns v. Sampson, 59 Me. 568; Kellam v. Janson, 17 Penn. St. 467; Overdeer v. Lewis, 1 Watts & S. 90; Page v. De Puy, 40 Ill. 506; Latimer v. Woodward, 2 Doug. 368; Harrington v. Scott, 1 Mich. 17; Seitz v. Miles, 16 Id. 456; Hoffman v. Harrington, 22 Id. 52; Farmer v. Hunter, 45 Id. 337. The mere receipt of rent due before forfeiture, after the lease had been forfeited, will not be a waiver of forfeiture. Jackson v. Allen, 3 Cow. 220; Stuyvesant v. Davis, 9 Paige, 427; Bleecker v. Smith, 13 Wend. 533. And, certainly, the mere payment of rent or royalty, unless fully paid, would not waive the forfeiture, as it would be a continuing cause of forfeiture. Tayl. Landl. & Ten. § 500; Alexander v. Hodges, 41 Mich. 691; Doe v. Woodbridge, 9 Barn. & Co. 376; Doe v. Allen, 3 Taunt. 78; Doe v. Jones, 5 Exch. 498. Counsel for defendant further insist that the object of the bill is to declare a forfeiture of an estate for non-performance of a condition subsequent, against the rule that equity will never enforce a penalty or forfeiture. We do not think this is the proper view to be taken of the bill. The bill treats the lease as a void incumbrance, under which the defendant company, by its claims thereunder, clouds the complainant’s title. The court is not asked to declare the forfeiture, but to ascertain whether or not a completed forfeiture exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has been done, and, if so, to declare its effect upon the title to complainants’ property. It is further said that, even though there has been a forfeiture, a court of equity will relieve the tenant therefrom. Equity has jurisdiction in such cases, but the defendant company is not before us asking any such relief, and tbe subject cannot be further discussed. Upon a review of the case, and briefs of the learned counsel who argued it, we think the circuit judge reached the correct conclusion, and his decree must be affirmed. The other Justices concurred.	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Fead, J. Some time after 7 o’clock in the evening of August 17, 1927, an overcast, cloudy night, so dark that drivers had their headlights on, Joseph Baiun, 8 years old, was sent by his parents to carry a two-quart pail of milk to a neighbor. He was next discovered lying on the east side of public highway U. S. 12, which runs north and south. He. was dead, with his skull fractured and his neck broken, either of which injuries would have caused instant death. The milk pail was found 75 or more feet south, with a deep dent in it and the handle bent. There were no' eyewitnesses to the accident. Defendant drove north on the road about the time of the injury to decedent. A mile north of where Joseph was found, defendant came upon a wagon going north, attempted to turn to the left, saw another car approaching, and to avoid an accident turned to the right, lightly struck the wagon, ran across a small ditch into a field, attempted to drive out but could not, and remained there for some time, his car headed south. Immediately before defendant struck the wagon a car passed him going south, and the occupants testified they met no other vehicle before they reached the boy. As they came to where Joseph was lying, another car drove up. Some of the occupants of the two cars summoned a deputy sheriff, physician, and undertaker. After examining the boy, the deputy'sheriff and physician went to where defendant’s car was stalled in the field. They testified they found milk on the radiator and windshield of the car, smelled warm milk, found hair on the car which corresponded in color and texture with Joseph’s, and discovered a dent in the radiator about the size of the boy’s head, with hair in it simi lar to his. Others examined the car in the field and at the jail and gave corroborating testimony. There was also evidence that defendant was excited, said he had been going to Chicago, which was south, and that if he hit the boy, he did not know it. This evidence, while' disputed and explained in many respects, required the court to submit to the jury the question of whether defendant’s car struck decedent. The claims of negligence submitted to the jury were: (a) That defendant was driving at an unreasonable rate of speed; (b) that he did not have the car under reasonable control; and (c) that he did not keep a proper lookout. There was no direct evidence of negligence. But negligence may be proved by circumstantial evidence. Burghardt v. Detroit United Railway, 206 Mich. 545 (5 A. L. R. 1333). The jury may draw legitimate inferences from established facts, and to do so is not to speculate or guess the facts. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464. As there were no eyewitnesses to the injury, the law raises the presumption that decedent was in the exercise of due care. Contributory negligence was not a question for the jury. The driver of an automobile has the duty, not only to keep a lookout ahead and to have his car under control, but also to drive at such speed that he can stop within the range of his vision. The latter is a rule of safety. Ruth v. Vroom, 245 Mich. 88. Assuming, from the verdict, that defendant’s car struck decedent, and from the presumption of law, that decedent was in the exercise of due care, it is a legitimate inference, if not an inevitable conclusion, that defendant was guilty of one or more of the acts of negligence charged against him. If he had kept a proper lookout, had his car under control and could have stopped within the range of his vision, he necessarily would have seen decedent and have stopped in time or driven around him. The alternative is the incredible hypothesis that defendant seasonably saw decedent and ran him down. The injury could not have occurred with both defendant and decedent exercising due care. Defendant’s negligence was for the jury, and its finding that he was negligent was not against the great weight of evidence. We have considered the other assignments of error briefed by counsel, but they are so plainly without merit as to require no discussion. Judgment for plaintiff is affirmed, with costs. North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.	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Fellows, J. Plaintiff filed its bill in the circuit court for the county of Wayne in chancery to reform the description in a land contract between it and defendants. Defendants appeared and filed an answer admitting error in the description and consenting to the correction, and by way of cross-bill in their answer prayed for rescission of the contract alleging many breaches of its terms. On motion of plaintiff, an order was made requiring that defendants pay into court all sums then due under the terms of the contract, the sums to become due as they matured, and the future taxes and assessments. Defendants did not make the payments and after a hearing upon an order to show cause defendant Edward W. Glinsky was committed to the county jail for contempt until such payments were made but not to exceed 30 days. To review this order of commitment we issued this writ of certiorari. Much space is taken in plaintiff’s brief in calling our attention to the fact that defendants are seeking affirmative relief and to a consideration of whether their cross-bill would justify such affirmative relief. But we think both suggestions are beside the mark. In order to more clearly perceive what is before us, it may not be amiss to call attention to what is not before us. There being no motion to dismiss the cross-bill in the nature of a demurrer, we ought not to consider whether the cross-bill would be bad on general demurrer. The defendants do not seek an injunction to restrain plaintiff from enforcing the land contract; on the other hand, they offered in open court to surrender possession of the premises to the plaintiff. Nor was the money required to be deposited in place of a bond or otherwise as a condition of the maintenance of the action set forth in the cross-bill. Quite likely the trial judge may re quire reasonable conditions of a party seeking equitable relief sucb as a bond or deposit to secure payment of costs and doubtless numerous other conditions, and may refuse a party the right to proceed unless the conditions are complied with, but this right to impose conditions upon jib.e right to proceed does not confer power to imprison for failure to pay a debt due on a simple contract (see Constitution, art. 2, § 20'; Melconian v. Grand Rapids, 218 Mich. 397), and this is true even though the court has ordered the payment of such debt either to the creditor or to the clerk of the court. The putting of such a debt into a final decree or judgment, or into an interlocutory order does not change its character. The money required to be paid was at most due on a contract (and this assumes, for the purpose of the ,case, that defendants were entirely wrong on the facts set up in their cross-bill); it was not a specific fund nor was it a trust fund, nor was it due from or to an officer or arm of the court. It was at most a debt due on a contract between private parties and its collection could be enforced in a simple action at law by execution. Under such circumstances, a party may not be imprisoned for contempt for failure to pay it. 3 Comp. Laws 1915, § 12268, subcl. 5; North v. North, 39 Mich. 67; Carnahan v. Carnahan, 143 Mich. 390 (114 Am. St. Rep. 660, 8 Ann. Cas. 53); Swarthout v. Lucas, 102 Mich. 492; Jones v. Wayne Circuit Judge, 236 Mich. 313; Belting v. Wayne Circuit Judge, 245 Mich. 111. In the last cited case, it was held (quoting from the syllabus); “An order of court for payment of alimony, either permanent or temporary, is enforceable by proceedings for contempt, but other orders for payment of money are not so enforceable unless by law execution for collection cannot be awarded. ’ ’ The order here under review will be set aside, with costs to defendant Edward W. Ginsky. North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.	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Wiest, J. This is a suit to quiet title. Two questions are presented: (1) Did a warranty deed, confessedly security in the nature of a mortgage in the first instance, by subsequent deeds, acts, land contract, options, lease, and dealings with reference to the land, pass the title in fee? (2) If not, did plaintiffs in good faith, and for a valuable consideration, purchase the property from parties having of record title in fee? The decree in the circuit quieted plaintiffs’ title. Several defendants appealed, but it is only necessary to pass upon the rights of Alexander T. Fischer, who claims right of redemption, and insists that plaintiffs are only mortgagees, notwithstanding the matters we will now mention. • Mr. Fischer owned the land, was indebted to Anthony Lauhoff, and May 10, 19Ó9, he and his wife executed and delivered to Lauhoff and wife a warranty deed to the premises. This instrument was recorded as a deed, although conceded to have been given as security in the nature of a mortgage. Mr. Fischer did not pay his debt to Lauhoff, and, April 6, 1914, Lauhoff and wife conveyed the land to Fenton B. Nebel and wife by warranty deed. This conveyance was also recorded as a deed, although the Nebels knew that the Lauhoff deed from Fischer was in the nature of a mortgage. The same date Mr. and Mrs. Fischer gave Mr. and Mrs. Nebel a quitclaim deed. The deed from the Lauhoffs operated to convey the mortgage interest and the quitclaim deed from the Fischers to the Nebels was intended in aid of the security. We now come to matters requiring somewhat extended notice, as it is claimed they operated to vest the legal title in the Nebels. July 14,1914, Mr. Nebel and his wife entered into a land contract with Eleanor Fischer, daughter of Alexander, for the sale to Eleanor of the premises upon payment of $8,131, on or before two years from that date. In that transaction Mr. Fischer was the real party interested- September 30,1919, that land contract was assigned by Eleanor to the Nebels, and thereby canceled; nothing having been paid thereon. The same day Mr. Nebel, as lessor, and Eleanor Jeffries (nee Fischer), as lessee, executed a lease of the premises to run from October 1, 1919, to October 1, 1920. September 17, 1919, Nebel and wife signed an option giving Eleanor Jeffries the right, until October 1,1920, to purchase the premises upon payment of $11,400, and the taxes due after January, 1919. The right, under this option, was not exercised. Mr. Fischer maneuvered all these matters, and he, instead of his daughter, was the interested party. The Nebels wanted their money, and Mr. Fischer was active in inducing plaintiffs herein to purchase the land from the Nebels and give him an option to purchase. Mr. and Mrs. Sauer decided to purchase, and September 17, 1923, Mr. and Mrs. Nebel, by warranty deed, conveyed the land to Mr. and Mrs. Sauer, receiving therefor $20,000 in cash and a mortgage back for $10,000, which mortgage was later paid. The deed and mortgage were recorded. Mr. Fischer was anxious to have the deal consummated, and participated in bringing about the sale and knew the price paid. October 25, 1923, Mr. Fischer obtained from Mr. and Mrs. Sauer an option allowing him to purchase the land, and a contiguous six and one-half acre parcel, for the sum of $47,500, with right to renewal of the option for another year upon increasing the price $6,000, and like right to renew for one more year. This option was upon the consideration that Mr. Fischer pay seven per cent, interest on the option price and also pay the taxes. Mr. Fischer, while anxious to obtain the so-called option, was careful not to sign it and merge it into a contract to purchase. He did not pay the interest or taxes, nor take a renewal. December 15, 1925, Mr. and Mrs. Sauer, by registered mail, sent Mr. Fischer, notice of forfeiture and cancellation of the option. Mr. Fischer now invokes the maxim, “Once a mortgage, always a mortgage.” That maxim, however, does not mean that a right of redemption cannot be lost except under foreclosure. Plaintiffs assert that they purchased the title in good faith and for a valuable consideration, without knowledge of any claim of a mortgage; that Mr. Fischer made no such claim while inducing them to make the purchase from the Nebels, and, in any event, the deed from Mr. Fischer to Lauhoff, if in the nature of a mortgage, was later changed, by subsequent deeds and the dealings we have mentioned, into an absolute title. In reply to plaintiffs’ claim of good faith, Mr. Fischer points to the testimony of Herman A. Miller, who examined the title for plaintiffs. “Q. Did you know anything about Mr. Nebel’s title being that of mortgagee or vendor in a land contract? “A. Well, I knew how he got it in the first place, yes, sir.” We get little help from this double question and answer. What did the witness know about the title at the time plaintiffs purchased! We must be informed more definitely before' we can charge plaintiffs with his knowledge. When plaintiffs purchased from the Nebels, Mr. Fischer was present, had urged the purchase, knew that plaintiffs paid $30,000 for the land, made no claim that the Nebels held as mortgagees, and that he had right of redemption, but led plaintiffs to believe they were getting title in fee simple and could give him an option to purchase the land. While it is conceded that the Lauhoff and Nebel deeds were, in the first instance, held as security in the nature of a mortgage, we very much question the. correctness thereof. Mr. Fischer at no time obligated himself to pay anything. A deed, in terms conveying a title in fee simple, is not to be held a mortgage, unless given to secure payment of a debt or loan. If personal liability to pay the debt is extinguished and it is optional with the grantor to rescue the property by payment, or relinquish it by nonpayment, it is an absolute sale with privilege of repurchase, and not a mortgage. See Blumberg v. Beekman, 121 Mich. 647; Gogarn v. Connors, 188 Mich. 161. We will, however, consider the issues as presented by the briefs. It is well established that a deed, given as a mortgage, may be changed by subsequent ágreement of the parties into an absolute deed. Brennan v. Finn, 217 Mich. 584. Title may not be passed by estoppel, it is true, but when passed by warranty deed and the grantor claims parol right of defeasance he may, by agreement or acts evidencing such purpose or bringing such re-. suit, cancel the secret agreement and let the terms of the deed control. We quote the following from Falis v. Conway Mutual Fire Ins. Co., 7 Allen (Mass.), 46: “The first deed and bond unquestionably constituted a mortgage; and the plaintiff now contends that this character of the estate was not changed by the subsequent transactions, and that he held an equity of redemption when he answered that he owned the property. But we cannot so regard it. The bond of defeasance, the only contract made with him at the time when he conveyed the land, had been surrendered, and by the agreement of the parties had become inoperative and void. The new bonds given in succession were in every essential particular new and independent contracts; they were different in amount, upon a consideration partly new, and to be performed at a different time. They were therefore merely personal contracts; and not being made at the same time with the conveyance of the land, or provided for in any agreement made at that time, did not create any estate in the land. The plaintiff had surrendered and abandoned the title which he held as mortgagor, and made a contract to purchase the land upon new conditions, and for a new consideration. ” We quote, with approval and as applicable, the following from Maxfield v. Patchen, 29 Ill. 39: “If this was a mortgage, it was from circumstances outside of, and independent of, the written agreement. * * * Even if this was in its inception a mortgage, the evidence that appellant had notice of that fact when he purchased, is not sufficient. * * * “But conceding that appellant was fully aware of all the circumstances of the case, from the time the land was purchased of the government up to the time of liis own purchase, did he acquire the title, subject to be defeated by appellee’s claim? * * * We think the evidence is abundant to show, that appellee had abandoned the contract. It is true, he did not in terms say so, but all of his acts subsequent to the maturity of his notes seem to unmistakably indicate such a design. And had the land not been improved, or had it not appreciated in value, the presumption, from his previous conduct, is, that he would never have asserted this claim. To permit him to do so, would be to enable him to perpetrate a fraud upon appellant. If he purchased without notice, he must be protected. If, with full notice of all the circumstances, he was invited by the acts of appellee to believe that he had abandoned his claim, it would be inequitable and unjust to permit him to recover the premises, with the improvements and enhanced value of the land. Appellee has been guilty of laches, has stood by and failed to assert his right when it would have injured no pqrson. He did no act, or even claim the right to enforce the contract, when it would have produced no injury. The right to treat this contract as a security for a loan, being a verbal secret understanding between the parties, not appearing in the written agreement, may be shown to have been voluntarily abandoned, altered or rescinded by the agreement of the parties. If it appeared in the written agreement, then a regular foreclosure, a release or satisfaction would be necessary. As between the parties themselves, the proof of abandonment or a rescission might be required to be more rigid than where the rights of third parties had intervened.” But defendant Fischer appeals to the maxim, “Once a mortgage, always a mortgage.” The distinction between the maxim, “Once a mortgage, always a mortgage,” and surrender of a right of defeasance, was well pointed out by Chief Justice Shaw in Trull v. Skinner, 17 Pick. (Mass.) 213: “The first question is, whether this last agreement, surrendering and canceling the instrument of defeasance, was an extinguishment of the equity of redemption, as between the parties, and against the creditors of the mortgagor. The court are of opinion^ that where.an absolute deed is given, accompanied by a simultaneous instrument, operating by way of defeasance, and afterwards the parties, by fair mutual stipulations, agree that the defeasance shall be surrendered and canceled, with an intent to vest the estate unconditionally in the grantee, by force of the first deed, by such surrender and cancellation the estate becomes absolute in the mortgagee. The original conveyance stands unaffected in form and legal effect; it conveys an estate in fee; the only party who could even claim a right to deny it that operation, by engrafting a condition upon it, has voluntarily surrendered the only legal evidence, by which that claim could be supported, and is thereby estopped from setting it up. Such cancellation does not operate by way of transfer, nor strictly speaking by way. of release working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evidence, by which alone the claim could be supported. ’ ’ "We have quoted the holdings where written defeasances were involved, and it is clear that the rule applied in such cases is equally applicable to a case involving a claimed parol right of defeasance. If Mr. Fischer ever had right of defeasance, he lost the same by his own acts, and the contract, lease, options, and course of dealings wholly negativing rights of a mortgagor. For such reason, and because plaintiffs were good-faith purchasérs, the decree in the circuit is affirmed, with costs against defendant Alexander T. Fischer. North, . C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred.	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Potter, J. November 22, 1924, plaintiff commenced suit against defendants under Act No. 187, Pub. Acts 1905, 3 Comp. Laws 1915, §§ 14827-14830. It is alleged and not disputed that the board of education of the city of Detroit made a contract with Rosewarne, McNab & Worswick for the construction of the Noble high school for $349,870; that the board of education required such contractors give a bond for the faithful performance of their contract, and Rosewarne, McNab & Worswick entered into a bond as principals with the Southern Surety Company, defendants, as surety, as required, in the sum of $349,870, conditioned upon it building and completing the Noble high school and paying to any subcontractor, or by any such contractor or subcontractor as the same may become due and payable, all indebtedness which may arise from said contractor to a subcontractor or party performing labor or furnishing materials, or any subcontractor to any person, firm, or corporation on account of any labor performed or material furnished in the erection, repairing, or ornamentation of such building. Rosewarne, McNab & Worswick made a contract with Irvine & Meier, Incorporated, for the installation of the heating, plumbing, and generating systems in said building. Irvine & Meier, Incorporated, contracted with the National Regulator Company to install the National System of Automatic Temperature Regulation in said building for $5,450. The proof shows the National Regulator Company sold and delivered the material and performed the work and installed the National System of Automatic Temperature Regulation in accordance with the plans and specifications for the building. It received in payment upon contract, $1,550, leaving $3,900 due. Upon the filing of the declaration, Rosewarne, McNab & Worswick pleaded the general issue and gave notice that plaintiff’s declaration did not state a cause of action; did not comply with the provisions of Act No. 187, Pub. Acts 1905; that defendants were discharged from liability because no proper notice was served as provided by Act No. 187, Pub. Acts 1905; that the Noble school was not yet accepted by the board of education; that the work performed was not in accordance with the plans and specifications. The defendant Southern Surety Company likewise filed a plea of the general issue by the same attorneys, giving the same notice of special defenses. The pleas were filed on January 5, 1925. The case was brought on for trial November 25, 1927, two years and ten months after it was at issue. The proof in the case was undisputed that the board of education entered into the contract as alleged with defendants Rosewarne, McNab & Worswick; that the bond mentioned and set forth in the declaration was executed by the Southern Surety Company and the principal contractor; the contract .was made with Irvine & Meier; they entered into a contract with the National Regulator Company for the installation of the National System of Automatic Temperature Regulation; the same was installed by the National Regulator Company in accordance with the plans and specifications, in good working order, and the National Regulator Company had paid any and all sums due for labor or material in connection with such installation. It furnished monthly statements of the amount due, and had received $1,500 upon its contract; and the amount due upon the contract at the time of the completion of the installation was $3,900. Defendant’s attorney then recalled to the stand Mr. Purcell, plaintiff’s witness and the local representative in Detroit of the National Regulator Company, and made proof that the contract made by the National Regulator Company was entered into in the city of Detroit, whereupon he made a motion to amend the plea filed by defendants to set up that the National Regulator Company is a foreign corporation and was not, at the time the contract was entered into or at the time of the suit, authorized to do business in the State of Michigan. This motion was denied, and thereupon defendant’s counsel moved for a directed verdict for both defendants for the reason plaintiff was a foreign corporation, not authorized to do business in the State; that plaintiff National Regulator Company was a subcontractor under Irvine & Meier in the installation of the heating and equipment in the Noble school, and that no notice was given under the provisions of 3 Comp. Laws 1915, § 14828, and the amendments thereto, either to the board of education or to the general contractors, Rosewarne, McNab & Worswick; that it also claimed the benefit of the bond of the Southern Surety Company, and that the Southern Surety Company was not liable on the bond for the reason of insufficient statutory notice, which motion for a directed verdict was denied, and defendants then gave testimony tending to establish that Rosewarne, McNab & Worswick had in their hands money which might otherwise be due to Irvine & Meier, amounting to approximately $11,000, and that there were outstanding claims against it for $24,000. Defendant offered a certificate from the secretary of State that he could find no record after diligent examination in his office, of the National Regulator Company, a foreign corporation, having been admitted to do business in the State. This offer was objected to by plaintiff and the proof rejected, whereupon the court directed a verdict for the amount $3,900 with interest, amounting in all to $4,533, and judgment was entered thereon. Defendant’s counsel moved for a new trial upon the ground that the verdict was against the law and the evidence ; that the court erred in overruling the motion of defendant’s counsel for a directed verdict, for the reason that it affirmatively appeared that plain tiff was a foreign corporation; that proper notice had not been given in accordance with Act No. 187, Pub. Acts 1905 as amended, and for other reasons. This motion for a new trial was denied, and plaintiff brings error, contending that the verdict was against the law and the evidence; that the court erred in overruling the motion of defendants to direct a verdict for defendants at the close of plaintiff’s testimony; that the court erred in refusing to direct a verdict for the reason that it appeared that plaintiff was a foreign corporation, doing business in this State in violation of 3 Comp. Laws 1915, §§ 9063, 9072; that the court erred in not directing a verdict for defendants because timely notice was not served as provided by section 2 of Act No. 187, Pub. Acts 1905; because the court erred in sustaining the objection of plaintiff to the admission of the certificate of the secretary of State showing plaintiff' had not been authorized to do business in the State; because the court erred in refusing to permit defendants to amend their plea as heretofore stated; because the court erred in directing a verdict for plaintiff, and in not directing a verdict for defendant, and in deny-' ing its motion for a new trial. This case had been at issue two years and ten months prior to the time the motion was made to amend defendants’ plea. The motion was not made until the case was on trial in the Wayne circuit, and then only at the conclusion of plaintiff’s testimony. We do not think the court erred in refusing to permit defendant at that stage of the proceeding to amend his plea. Defendant had just as good an opportunity to know the basis for this plea, which is a matter of public record, at the time it filed its original plea, as at the time of the trial. It had no right to hold back giving 'notice of this defense and then spring it upon the plaintiff at the trial when he must either accept a continuance or be defeated in case such plea was granted. There is nothing on the record to indicate whether this action was taken by defendants deliberately or whether their failure to know the situation as to plaintiff was due to negligence. The result to plaintiff would be the same in either instance. At common law the surety was particularly subject to the protection of the court. In order to hold the surety all of the terms of the contract had to be strictly complied with. Sureties were usually persons who executed bonds gratuitously, but in this case there is no evidence that this bond was gratuitously signed by the surety. On the other hand, it is signed by a surety company and is a contract entered into for pay. The strict rule of the common law applicable to individual gratuitous sureties does not apply. People v. Bowen, 187 Mich. 257; People v. Traves, 188 Mich. 415. It is claimed the owner, principal contractor, and surety, were entitled to notice before any money was paid. Notice was given to the board of education June 7, 1924, at which time it had in its hands $45,835.13 belonging to the principal contractor, who has since been paid in full. This was sufficient under 3 Comp. Laws 1915, § 14828. Under the circumstances the delay, if any, will not operate to discharge the surety from liability. People v. Bowen, supra, and cases cited. People v. Traves, supra. The other assignments of error have been examined, and we do not think they merit discussion. Judgment is affirmed, with costs to plaintiff. North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.	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PER CURIAM. Plaintiff appeals as of right the circuit court order dismissing her complaint without prejudice on the basis of a forum-selection clause in the parties’ contract. We affirm. This appeal is being decided without oral argument. MCR 7.214(E). I. FACTS Plaintiff was employed as a branch manager by defendant, a Washington corporation, pursuant to an employment contract. The contract contained both a choice-of-law provision and a forum-selection provision: This agreement shall be subject to and governed by the laws of Washington, irrespective of the fact that a party is or may become a resident of a different state. Both parties hereby agree that the Circuit Court of Pierce County, State of Washington, shall have the exclusive jurisdiction to hear and determine any and all disputes, controversies, or claims arising out of, or relating to this Agreement, or concerning the respective rights of the parties hereunder and, for such purposes, do hereby submit themselves to the sole personal jurisdiction of that Court. Plaintiff brought this action in the Wayne Circuit Court, alleging that defendant failed to pay commissions that she was owed under the contract. Defendant argued that, in light of the forum-selection clause, plaintiff should have brought this action in the state of Washington. Plaintiff asserted that the forum-selection clause was unenforceable pursuant to MCL 600.745(3), which provides in pertinent part: If the parties agreed in writing that an action on a controversy shall be brought only in another state and it is brought in a court of this state, the court shall dismiss or stay the action, as appropriate, unless any of the following occur: (c) The other state would be a substantially less convenient place for the trial of the action than this state. (d) The agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means. (e) It would for some other reason be unfair or unreasonable to enforce the agreement. Defendant suggested that the forum-selection clause was enforceable under MCL 600.745(3), and that, in the alternative, Washington law should apply to determine the enforceability of the contract’s forum-selection clause. The trial court observed that “[p]eople are free to bargain for the [forum] where any dispute will be litigated and [plaintiff] did so . ...” Having found that plaintiff freely consented to the forum-selection provi sion, and that the provision did not fall within any of the MCL 600.745(3) exceptions, the trial court enforced the forum-selection clause and dismissed the action without prejudice. II. FORUM-SELECTION CLAUSE Plaintiff argues that the trial court erred in dismissing this action pursuant to the forum-selection clause in the parties’ contract. We disagree. A. STANDARD OF REVIEW Michigan courts have not precisely identified the proper standard for reviewing a trial court’s dismissal based on a forum-selection clause. Both parties contend on appeal that a trial court’s dismissal of an action pursuant to a contractual forum-selection clause should be reviewed de novo. While not identical, dismissal based on a forum-selection clause is similar to a grant of summary disposition for lack of personal jurisdiction. Although a valid forum-selection clause does not divest the Michigan courts of personal jurisdiction over the parties, it evinces the parties’ intent to forgo personal jurisdiction in Michigan and consent to exclusive jurisdiction in another forum. See James v Midland Co Agricultural & Horticultural Society, 107 Mich App 1, 5; 308 NW2d 688 (1981). Indeed, forum-selection clauses are inherently bound up with notions of personal jurisdiction. See id. Of note, the Michigan forum-selection statute, MCL 600.745(3), is itself contained among the jurisdictional provisions of the Revised Judicature Act. This Court reviews de novo a trial court’s grant of summary disposition, as well as a trial court’s jurisdictional rulings. Electrolines, Inc v Prudential Assurance Co, Ltd, 260 Mich App 144, 152; 677 NW2d 874 (2003). Moreover, a dismissal based on a forum-selection clause necessarily requires interpretation and application of contractual language. The legal effect of a contractual clause is a question of law that we review de novo. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 369; 666 NW2d 251 (2003). In light of the above authority and the contractual nature of forum-selection provisions, we are convinced that a trial court’s dismissal of an action pursuant to a contractual forum-selection clause is properly reviewed on appeal under a de novo standard. B. ANALYSIS We begin with Michigan’s fundamental rules of contract interpretation, set forth by our Supreme Court in Quality Products & Concepts, supra: In interpreting a contract, our obligation is to determine the intent of the contracting parties. If the language of the contract is unambiguous, we construe and enforce the contract as written. Thus, an unambiguous contractual provision is reflective of the parties’ intent as a matter of law. Once discerned, the intent of the parties will be enforced unless it is contrary to public policy. [Id. at 375 (internal citations omitted).] It is undisputed that Michigan’s public policy favors the enforcement of contractual forum-selection clauses and choice-of-law provisions. See Offerdahl v Silverstein, 224 Mich App 417, 419; 569 NW2d 834 (1997) (recognizing the enforceability of forum-selection clauses and choice-of-law provisions). Thus, assuming that certain exceptions do not apply, Michigan courts will enforce an express forum-selection clause as written. MCL 600.745(3). Similarly, Michigan courts will enforce contractual choice-of-law provisions if certain conditions are met. Chrysler Corp v Skyline Industrial Services, Inc, 448 Mich 113, 126-127; 528 NW2d 698 (1995); Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 60-61; 554 NW2d 17 (1996). The analysis grows more complicated, however, when a single agreement contains both a forum-selection clause and a choice-of-law provision. When a party to such an agreement sues in a state that is not designated by either the forum-selection clause or the choice-of-law provision, it becomes necessary to determine which state’s law will govern the enforceability of the forum-selection clause itself. In other words, the trial court where the action is filed must decide whether to determine the enforceability of the forum-selection clause by applying its own law, or by applying the law designated in the choice-of-law provision. In the case at bar, the parties designated the state of Washington in the forum-selection clause and Washington state law in the choice-of-law provision. Notwithstanding these provisions, plaintiff filed suit in Michi gan. Therefore, in order to decide whether to exercise or decline jurisdiction, it was essential for the trial court to determine whether the forum-selection clause was valid and enforceable. Accordingly, under ordinary circumstances, the trial court would have been required to first determine whether Michigan or Washington law governed the forum-selection clause’s enforceability. However, because we determine that the forum-selection clause in the parties’ contract would have been equally enforceable under either Michigan law or Washington law, we need not decide which state’s law would otherwise have governed the clause’s applicability. As noted earlier, Michigan courts generally enforce contractual forum-selection clauses. MCL 600.745(3); Offerdahl, supra at 419. The exceptions to this rule are stated in MCL 600.745(3)(a)-(e), and unless one of the statutory exceptions applies, Michigan courts will enforce a forum-selection clause as written. The statutory exceptions that are relevant in this case provide that a forum-selection clause should be enforced unless “[t]he other state would be a substantially less convenient place for the trial[,]” “[t]he agreement as to the place of the action is obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means[,]” or “[i]t would for some other reason be unfair or unreasonable to enforce the agreement.” MCL 600.745(3)(c)-(e). A party seeking to avoid a contractual forum-selection clause bears a heavy burden of showing that the clause should not be enforced. The Bremen v Zapata Off-Shore Co, 407 US 1, 17-18; 92 S Ct 1907; 32 L Ed 2d 513 (1972). Accordingly, the party seeking to avoid the forum-selection clause bears the burden of proving that one of the statutory exceptions of MCL 600.745(3) applies. Our research has revealed that the standards for enforcing contractual forum-selection provisions under Washington law are substantially similar. In general, Washington state courts will enforce a forum-selection clause unless it is unreasonable, unjust, or unfair. Voicelink Data Services, Inc v Datapulse, Inc, 86 Wash App 613, 617-618; 937 P2d 1158 (1997). “[T]he party arguing that the forum selection clause is unfair or unreasonable bears a heavy burden of showing that trial in the chosen forum would be so seriously inconvenient as to deprive the party of a meaningful day in court.” Bank of America, NA v Miller, 108 Wash App 745, 748; 33 P3d 91 (2001). “Absent evidence of fraud, undue influence, or unfair bargaining power, courts are reluctant to invalidate forum selection clauses as they increase contractual predictability.” Id., citing Voicelink Data Services, supra at 617; see also Wilcox v Lexington Eye Institute, 130 Wash App 234, 239; 122 P3d 729 (2005). Turning to the case at bar, defendant presented affidavits stating that the witnesses and voluminous employment records needed to defend this action are located in Washington. Moreover, defendant’s affidavits showed that only a minimal amount of relevant evidence is located in Michigan. Plaintiff asserted that most of her witnesses reside in Michigan, that the pertinent transactions took place in Michigan, and that certain factual information concerning the case is located in Michigan. However, plaintiff failed to present admissible documentary evidence supporting any of these assertions. Plaintiff also claimed that the contract was obtained through abuse of economic power, inasmuch as defendant is a large corporation and she is a mere individual who was unable to negotiate the terms of the contract at the time the agreement was executed. Again, however, plaintiff failed to present evidence to support her assertions that defendant wielded unfair bargaining power or that the clause was not subject to negotiation. Under the law of both Michigan and Washington, plaintiffs unsupported allegations were inadequate to meet her burden of showing that enforcement of the forum-selection clause would have been unreasonable, unjust, substantially inconvenient, or unfair. The Bremen, supra at 17-18; Bank of America, supra at 748; see also 1 Restatement Conflict of Laws, 2d (1988 Revisions), § 80, comment c, p 85 (“[t]he burden of persuading the court that stay or dismissal of the action would be unfair or unreasonable is upon the party who brought the action”). Moreover, the claimed inconvenience of litigating in Washington should have been apparent to plaintiff when she agreed to the forum-selection clause. Like the Washington Court of Appeals and the United States Supreme Court, we conclude that inconvenience, insofar as it is within the contemplation of the parties at the time of contracting, should not render a forum-selection clause unenforceable. The Bremen, supra at 16-17; Bank of America, supra at 748-749. Where the inconvenience of litigating in another forum is apparent at the time of contracting, that inconvenience is part of the bargain negotiated by the parties. Allowing a party who is disadvantaged by a contractual choice of forum to escape the unfavorable forum-selection provision on the basis of concerns that were within the parties’ original contemplations would unduly interfere with the parties’ freedom to contract and should generally be avoided. III. ATTORNEY FEES Defendant also asserts that it is entitled to attorney fees incurred in defending this action, including the appeal. Defendant asserted its claim for attorney fees below, but the trial court denied the request. Although filing a cross-appeal is not necessary to argue an alternative basis for affirming the trial court’s decision, the failure to do so generally precludes an appellee from raising an issue not appealed by the appellant. Kosmyna v Botsford Community Hosp, 238 Mich App 694, 696; 607 NW2d 134 (1999). Defendant’s failure to file a cross-appeal from the trial court’s denial of its request for attorney fees precludes it from now attempting to obtain a decision more favorable than that rendered below. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). IV CONCLUSION Similar to a dismissal for lack of jurisdiction, see MCR 2.504(B)(3), a dismissal based on a contractual forum-selection clause is not an adjudication on the merits. Therefore, such a dismissal is properly characterized as a dismissal without prejudice. See ABB Paint Finishing, Inc v Nat’l Union Fire Ins Co of Pittsburgh, 223 Mich App 559, 563; 567 NW2d 456 (1997). Affirmed. Contrary to plaintiffs assertion, the trial court did not dismiss this case for improper venue. Such a decision necessarily requires the court to first determine under its own law whether the contractual choice-of-law provision is itself enforceable. See Beilfuss v Huffy Corp, 274 Wis 2d 500, 506-507; 685 NW2d 373 (Wis App, 2004) (describing the decision whether to construe a contract’s forum-selection clause and choice-of-law provision together or independently as “the classic conundrum”). We have previously determined that Michigan courts have the initial jurisdiction to “determine the threshold issue whether a party is bound by a contract, and, accordingly, any forum selection and choice-of-law provision in the contract.” Offerdahl, supra at 420; see also Blackburne & Brown Mortgage Co v Ziomek, 264 Mich App 615, 621-622; 692 NW2d 388 (2004). However, this Court has never specifically addressed whether such an initial determination should be made pursuant to Michigan law or, alternatively, pursuant to the law designated in the contract’s choice-of-law provision. Michigan courts have never squarely addressed whether the enforceability of a contractual forum-selection clause should be governed by the law of the state where the action was filed or, in the alternative, the law selected by the parties in the choice-of-law provision. However, courts in several other jurisdictions have addressed this matter. Many jurisdictions follow the rule that, provided the choice-of-law provision is enforceable under the law of the state where the action was filed, the law selected in the choice-of-law provision will govern the applicability or enforceability of the forum-selection clause. The rationale for this view is that the parties contracted for the law of a specific jurisdiction, and therefore the law of the state where the action was filed should not be applied to displace the contractually chosen law. See Jacobsen Construction Co v Teton Builders, 106 P3d 719, 723 (Utah, 2005); Szymczyk v Signs Now Corp, 168 NC App 182, 187; 606 SE2d 728 (2005); Jacobson v Mailboxes Etc USA, Inc, 419 Mass 572, 575; 646 NE2d 741 (1995); Cerami-Kote, Inc v Energywave Corp, 116 Idaho 56, 58; 773 P2d 1143 (1989); see also Parsons Dispatch, Inc v John J Jerue Truck Broker, Inc, 89 Ark App 25; 199 SW3d 686 (2004) (assuming that Florida law, as designated by the choice-of-law provision, governed the enforceability of the forum-selection clause); Eisaman v Cinema Grill Systems, Inc, 87 F Supp 2d 446, 448 (D Md, 1999) (federal district court sitting in diversity applying Georgia law, as designated by the choice-of-law provision, to determine the enforceability of a forum-selection clause). In contrast, certain jurisdictions follow the rule that a contract’s forum-selection clause is to be read independently of the choice-of-law provision, and that the validity of the forum-selection clause will always be determined according to the law of the jurisdiction where the action was filed. This rule is based on the notion that because choice-of-law provisions only require application of the chosen state’s substantive law, the state where the action was filed remains free to apply its own law on matters of procedure, including the question whether the forum-selection clause is valid in the first place. See Golden Palm Hospitality, Inc v Stearns Bank Nat’l Ass’n, 874 So 2d 1231, 1234-1235 (Fla App, 2004) (adhering to the view that Florida law governs the enforceability of forum-selection clauses, even when the contract contains a choice-of-law provision favoring the law of another jurisdiction); see also Fendi v Condotti Shops, Inc, 754 So 2d 755, 757-758 (Fla App, 2000); Yamada Corp v Yasuda Fire & Marine Ins Co, Ltd, 305 Ill App 3d 362, 367-368; 712 NE2d 926 (1999) (applying Illinois law instead of the contractually chosen Japanese law to determine validity of the forum-selection clause). See Morgan Bank (Delaware) v Wilson, 164 Ariz 535, 538; 794 P2d 959 (Ariz App, 1990) (“we believe that under either Arizona or Kentucky law, the result is the same in the present case, and therefore do not decide which law applies”).

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Fer CURIAM. Respondent appeals as of right the November 1,2004, order of the trial court, which denied his motion to quash a subpoena and mandated his appearance for a deposition. We affirm. Respondent received a subpoena to appear for a deposition in Michigan regarding matters stemming from a presuit discovery proceeding pending in Tarrant County, Texas. Respondent moved to have the subpoena quashed. When his motion was denied, he immediately moved for a stay of his deposition pending appeal. Respondent also filed an appeal from the order denying his motion to quash. When his motion for a stay was denied by the trial court, respondent moved both this Court and the Michigan Supreme Court to stay the deposition until his appeal could be heard. These motions were denied. Ewin v Burnham, 471 Mich 943 (2004); Ewin v Burnham, unpublished order of the Court of Appeals, issued December 14, 2004 (Docket No. 259180). Respondent ultimately submitted to the deposition. Consequently, he is no longer asking this Court to quash the subpoena, but he requests that this Court seal the deposition, pursuant to a protective order, so that it cannot be used in any legal proceedings. MCR 7.216(A)(7) permits this Court to “at any time, in addition to its general powers, in its discretion, and on the terms it deems just,” “enter any judgment or order or grant further or different relief as the case may require.” Thus, we consider defendant’s issue regarding the propriety of the subpoena and order to appear for deposition, and the relief now requested. On appeal, respondent contends the trial court should have granted his motion to quash the subpoena because it violated his rights. Specifically, he argues that the trial court erred as a matter of law in interpreting Michigan law to require that he submit to the deposition. The interpretation and application of statutes is a question of law that we review de novo. Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997). The interpretation and application of court rules is also a question of law that is reviewed de novo, and the rules of statutory interpretation are applied. Hinkle v Wayne Co Clerk, 467 Mich 337, 340; 654 NW2d 315 (2002). Where statutory language is clear and unambiguous, judicial construction is precluded. Auto-Owners Ins Co v State Farm Mut Auto Ins Co, 187 Mich App 617, 618; 468 NW2d 317 (1991). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). This Court must “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). Respondent maintains that a Michigan court cannot issue a subpoena based on Tex R Civ P 202.1. Rule 202.1 dictates that, in order to effectuate a subpoena before a suit is filed, a party may petition the court for an order authorizing the taking of a deposition: (a) to perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit. In Michigan, MCR 2.305(E) permits depositions to be taken of Michigan residents when actions are pending in another state. It provides: Action Pending in Another State, Territory, or Country. An officer or a person authorized by the laws of another state, territory, or country to take a deposition in Michigan, with or without a commission, in an action pending in a court of that state, territory, or country may petition a court of record in the county in which the deponent resides, is employed, transacts business in person, or is found, for a subpoena to compel the deponent to give testimony. The court may hear and act on the petition with or without notice, as the court directs. Petitioner argues that there was no “action” pending in Texas and, thus, the Michigan court could not grant petitioner’s petition for a subpoena even though the Texas court authorized petitioner to seek respondent’s deposition. We disagree. MCR 2.305(E) must be read in accordance with the Uniform Interstate and International Procedure Act, which Michigan has adopted and codified at MCL 600.1852. This statute “establishes a clear procedure for deposing residents of Michigan in actions pending in other states.” Commercial Union Ins Co v Cannelton Industries, Inc, 828 F Supp 504, 508 (WD Mich, 1993). MCL 600.1852(2) states: Any court of record of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. The order shall be issued upon petition to a court of record in the county in which the deponent resides or is employed or transacts his business in person or is found for a subpoena to compel the giving of testimony by him. The court may hear and act upon the petition with or without notice as the court directs. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things for use in a proceeding before a tribunal outside this state. The statute and the court rule are not in conflict. The court rule provides a procedure whereby a person authorized by another state to take a deposition in Michigan in an “action” pending in that state may petition a court of this state for a subpoena to compel the deponent to give testimony. MCR 2.305(E). The word “may” is permissive. Gulley-Reaves v Baciewicz, 260 Mich App 478, 485; 679 NW2d 98 (2004). Thus, the court rule provides a non-mandatory procedure for obtaining Michigan depositions for “actions” pending in other states. The language of the court rule does not, in any way, limit the ability of a foreign party to obtain a subpoena for a deposition of a Michigan resident for purposes of a lawful proceeding, short of a filed action, in a foreign state. The statute, MCL 600.1852, provides authority to courts in this state to order persons in this state to give testimony for use in “any proceedings” before tribunals outside this state. Because the statute and the court rule do not conflict, this Court does not have to determine whether the statute is an attempt to usurp our Supreme Court’s authority to control prac tice and procedure in our courts. Mud v State Farm Mut Auto Ins Co, 267 Mich App 431, 442; 705 NW2d 151 (2005). MCL 600.1852 explicitly uses the term “proceeding” instead of “action.” Thus, by its plain language, it authorizes courts in this state to order a person domiciled in Michigan to submit to a deposition for use in “any proceeding” before a court in another state. In Michigan, a “proceeding,” in a general sense, is “ ‘the form and manner of conducting juridical business before a court or judicial officer.’ ” People v Bobek, 217 Mich App 524, 530; 553 NW2d 18 (1996), quoting Black’s Law Dictionary (6th ed). A “proceeding” “apparently encompasses all matters brought before a court in a specific judicial action.” Id. In Texas, a Rule 202.1 procedure is a proceeding as defined by Michigan law. The procedure, authorized by Texas law, provides access to Texas courts to perform specific judicial actions before suit. The presuit procedure is a sanctioned court proceeding, a step in the judicial process. Because MCL 600.1852 authorized the trial court herein to order respondent to testify for use in the Texas proceeding, we find no error that would require defendant to obtain relief by way of sealing the deposition pursuant to a protective order. We also find no alternative ground to rule in favor of respondent. We reject respondent’s argument that because he had no forum in which to assert objections to the procedure, he was deprived of his due process rights. First, respondent had ample opportunity to make arguments before the courts of this state. Second, we find that respondent has abandoned his claim that any relevancy objections could not be ruled on by our courts. An appellant may not argue error and leave it to this Court to discover and rationalize the basis for that error. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998). Further, we find it unnecessary to address respondent’s claim that the Full Faith and Credit Clause, US Const, art I\J § 1, does not apply to this case. The trial court did not rely on that clause in ordering respondent’s deposition and it was not an issue in the trial court. Affirmed.

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SAWYER, P.J. Defendant was convicted, following a jury trial, of operating a motor vehicle while intoxicated (OWI) or while visibly impaired (OWVD and thereby causing death. He was sentenced to serve 3 to 15 years in prison. He now appeals and we reverse and remand. At 2:00 a.m. on November 23, 2003, defendant was driving his sport utility vehicle (SUV) east on 17 Mile Road in northern Kent County. He attempted to turn north onto Edgerton Avenue and drove into the path of an oncoming car driven by Jason Reichelt. Reichelt’s car hit defendant’s SUV and spun 180 degrees, coming to rest on the centerline of 17 Mile Road. The SUV came to rest on the side of the road. It was later determined that defendant had a blood alcohol concentration of 0.16, which is twice the legal limit. Reichelt and his passenger, Jonathan Keiser, were not seriously injured, but Reichelt’s car was severely damaged and the headlights stopped working. Both men left the car and walked to the SUV to determine if anyone was injured. After speaking briefly with defendant, the two men walked back to Reichelt’s car. Reichelt indicated that he was aware that oncoming cars could hit his darkened car and that he wanted to determine if he could turn on the flashers. As Reichelt and Keiser stood by the car, an oncoming car driven by Tonya Welch hit Keiser, killing him. At the center of this appeal is the issue of causation. Defendant argues that not only did the trial court improperly instruct the jury on causation, there was also insufficient evidence of causation to establish defendant’s guilt. Because the two issues are intertwined with the question of what must be proven to establish causation in such a case, we shall analyze both issues together beginning with a determination of what the prosecutor must show to establish causation. As the Supreme Court discussed in People v Schaefer, causation consists of two components: In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists. The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in [People v] Tims[, 449 Mich 83, 96; 534 NW2d 675 (1995)], proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.”[ ] We initially note that there is no dispute at this point that defendant was intoxicated and that his driving was the cause of the initial accident. Furthermore, there is no argument that defendant’s driving was the factual or “but-for” cause of the second accident. This analysis is relatively straightforward: but for defendant causing the initial accident, the subsequent accident would not have occurred. Of course, factual causation is relatively easy to establish. As the court in Welch v State observed, “[m]ankind might still be in Eden, but for Adam’s biting an apple.” But the question whether defendant is the proximate cause of the subsequent accident, and thus of the victim’s death, is not so easily resolved. Schaefer discussed this requirement in further detail: For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken. If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury. The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim. The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable — e.g., gross negligence or intentional misconduct — then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.[ ] With these basic principles in mind, we conclude that the trial court improperly instructed the jury on the issue of proximate cause. We review claims of instructional error de novo. The trial court is required to instruct jurors on “all elements of the crime charged and must not exclude consideration of material issues, defenses, and theories for which there is supporting evidence.” Instructions are to be read as a whole and not piecemeal to determine if error requiring reversal occurred. “It is error for the trial court to give an erroneous or misleading jury instruction on an essential element of the offense.” The trial court gave detailed and extensive instructions on factual causation, including reinforcement of the concept that defendant had to he “a” cause of the accident, but not necessarily “the” cause of the accident. But the trial court’s instructions on proximate cause and superseding intervening causes were virtually nonexistent. The trial court did implicitly touch on the issue of proximate cause when it instructed the jury that one of several causes “is a substantial factor in causing a death if, but for that cause’s contribution, the death would not have occurred, unless the death was an utterly unnatural result of whatever happened.” But the instructions also told the jury that another cause could be a superseding cause only if it was the sole cause: Now it also necessarily follows that somebody else’s conduct, for example, by Mr. Keiser, or by some third party, even if that other conduct was wrong or itself negligent, does not cut off criminal liability unless the other cause was the only cause. Obviously, if somebody else’s conduct was the only reason Mr. Keiser died, then it can’t possibly be something to which Mr. Rideout contributed. This is not a correct statement of the law. A superseding intervening cause does not need to be the only cause. Indeed, as the Court noted in Schaefer, while the defendant’s conduct in that cause was a factual cause of the accident, the victim’s conduct may also have been a cause and, more to the point, potentially a superseding cause. The effect of the trial court’s instructions was that the jury could convict defendant if they found him to be a factual cause of the accident and that the jury could find the existence of a superseding intervening cause only if that superseding intervening cause was the only cause of the second accident. The jury was not adequately instructed on the issues of proximate and intervening causes. This conclusion is enough to set aside defendant’s conviction, with directions to the trial court to properly instruct the jury on the causation issue. But we agree with defendant that the problem in this case goes even deeper, because there was insufficient evidence to establish proximate cause at all. We review a claim of insufficient evidence in a criminal trial de novo. We view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the essential elements of the crime were established. The troubling aspect of this case is that the second accident only occurred after Keiser had reached a position of safety (the side of the road) and then chose to reenter the roadway with Reichelt to check on the car. While foreseeability is the “linchpin” of the superseding causation analysis, and it is at least arguably foreseeable that a person involved in an accident would check on his or her vehicle even if it remains on the road, the analysis does not end there. As Professor Dressier discusses in Understanding Criminal Law (3d ed), there is no universal test for determining if an intervening cause is also a superseding cause: One early twentieth century scholar observed that all efforts to set down universal tests that explain the law of causation are “demonstrably erroneous.” [Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harv L R 223, 317 (1912).] There are no hard-and-fast rules for determining when an intervening cause supersedes the defendant’s conduct. However, there are various factors that assist the factfinder in the evaluative process. Indeed, Dressier points out that to say that foreseeability is the “linchpin” is “a slight overstatement,” though it is of great significance. Rather, Dressier discusses six factors to be considered in determining if an intervening cause is a superseding cause. Of the six factors discussed by Dressier, three are not relevant here. They are the (1) de minimis contribution to social harm factor, (2) the intended-consequences doctrine, and (3) the omissions factor. The foreseeability factor is relevant here, but its application is less than clear. As Dressier points out, a responsive intervening cause will establish proximate cause, while a coincidental intervening cause will not unless it was foreseeable. In discussing responsive intervening causes, Dressier points to the examples of a passenger in a capsized boat drowning while attempting to swim to shore and a wounded victim being negligently treated and dying. That is, the harm results from actions taken in response to the defendant’s conduct. A coincidental intervening cause would exist, for example, where the defendant’s conduct put the victim in the “wrong place at the wrong time,” such as an assault victim who is attacked by a “knife-wielding maniac” while waiting in the emergency room for treatment of the initial wounds. Whether the intervening cause is responsive or coincidental in the case at bar is arguable at best. On the one hand, the victim reentering the roadway to check on the vehicle was in direct response to the accident, though not in direct response to defendant’s having driven. On the other hand, Welch’s driving down the road when she did was entirely coincidental. In our view, Reiser’s decision to reenter the roadway renders the foreseeability factor of little value to the analysis. Rather, that decision directly involves the two remaining factors identified by Dressier that are present here. Those two factors, we believe, compel the conclusion that the intervening cause of the second accident was also a superseding cause. First, there is the apparent-safety doctrine, which Dressier describes as follows: One scholar has observed that when a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.” [Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv L R 633, 651 (1920).] For example, consider a somewhat simplified version of the facts in State v Preslar [48 NC 421 (1856)]: D threatened the life of V, his spouse. As a consequence, V was forced to leave the house on a freezing night in order to protect herself. V walked to within 200 yards of her father’s home, where she would have been welcome, but she chose to spend the night in the extreme cold, rather than bother her father by entering the house. V froze to death during the night. Clearly, D was an actual cause of V’s death: but for D’s threatening conduct, V would not have gone out into the cold. But, V’s decision to sleep outside was also a but-for cause of her own death. Is D the proximate cause of V’s death? The court in Preslar answered this question in the negative. The result may be explained in terms of the apparent-safety doctrine. D did not follow V from their home. When V reached the vicinity of her father’s house, she knew that she could enter and be free from immediate harm. Therefore, her decision to sleep outside constituted a superseding intervening cause.[ ] Similarly, in the case at bar, Reiser had reached a position of apparent safety: he had gotten out of the vehicle and was alongside the road, off the pavement. Had the second accident occurred before Reiser could extricate himself from the Reichelt vehicle and get to the side of the road, then the causal chain would have been intact. But he was able to get out of harm’s way and to a relatively safe position at the side of the road. He then made the choice to return to the roadway and place himself in a more dangerous position. Like the victim in Preslar, Reiser made a decision regarding his actions after the immediate danger was over. And that decision, like the decision in Preslar, ended the initial causal chain and started a new one, one for which defendant was not responsible. The point of a person making a decision brings us to the remaining factor discussed in Dressier, that of voluntary human intervention: A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate, and informed” [Hart & Honoré, Causation in the Law (2d ed 1985), p 326] — a voluntary, knowing, and intelligent— human agent than in the case of an intervention of a natural force or the actions of a person whose conduct is not fully free. The result in the Preslar case, described [above], can be explained in terms of this factor. V chose to sleep in the cold rather than to enter her father’s home. Her decision was free, deliberate, and with full knowledge of the fact that it was exceedingly cold outside. Under these circumstances, the responsibility for her death is shifted from D to V. This outcome is consistent with the retributive principle that accords special significance to the freewill actions of human agents.[ ] Similarly, in the case at bar, Reiser made the voluntary decision to return to the vehicle on the roadway, despite the danger that it posed. He could have chosen to remain on the side of the road. He chose instead to reenter the roadway, with the danger of standing in the roadway next to an unlit vehicle in the middle of the night being readily apparent. In sum, we conclude that the prosecution failed to present sufficient evidence to establish that defendant’s actions were a proximate cause of Reiser’s death. Therefore, we vacate defendant’s conviction for OWI/OWVT causing death. There remains the problem of the remedy. Under People v Randolph, while defendant cannot be retried on the charge for which we found insufficient evidence, we can direct the entry of a conviction for a necessarily included lesser offense on which the jury was instructed. In this case, the jury was instructed on two lesser offenses: operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle while visibly impaired (OWVI). A charge of OWI/OWVI causing death may be based on the commission of either of those offenses. MCL 257.625(4). Therefore, in convicting defendant of OWI/OWVI causing death, the jury of necessity had to find that defendant was either operating while intoxicated or operating while visibly impaired. But the nature of the verdict form renders it impossible to determine which of the two the jury found to be the case. Accordingly, we believe that the appropriate remedy is to direct the trial court to enter a conviction for the lesser offense, OWVI, and to sentence defendant for that offense. If the prosecutor believes that a conviction on the greater offense of OWI would better serve the interests of justice, he may, at any time before sentencing, inform the trial court that he wishes to try defendant on a charge of OWI instead of a conviction being entered under MCL 257.625(3). In light of our resolution of the above issues, we need not decide defendant’s remaining issue. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. MCL 257.625(4). See MCL 257.625(l)(b). 473 Mich 418; 703 NW2d 774 (2005). Schaefer, supra at 435-436, quoting 1 Torcia, Wharton’s Criminal Law (15th ed), § 26, pp. 147-148. Schaefer, supra at 434-435, clarified that, under MCL 257.625(4), it must be shown that defendant was driving while intoxicated and that his driving caused the death, but the prosecutor does not have to show that it was defendant’s intoxicated driving that caused the death. 45 Ala App 657, 659; 235 So 2d 906 (1970). Schaefer, supra at 436-437, quoting People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914). People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). Id. Id. People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985). Schaefer, supra at 445. The fact that the jurors struggled with the issue of causation is reflected by the fact that they sent questions on the issue to the trial court during deliberations. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005). Schaefer, supra at 437. Section 14.03[C][1], p 189. Dressler, supra, § 14.03[C][3][a], p 189. Id. at § 14.03[C], pp 189-194. Id. Id. at § 14.03[C][3][b-c], pp 190-191. Id. Id. at § 1403[C][5], pp 192-193. Id. at § 14.03[C][6], p 193. 466 Mich 532, 552-553; 648 NW2d 164 (2002). Before the offense date in this case, the Legislature had replaced the crime of operating under the influence of intoxicating liquor with operating while intoxicated. The older terminology was used in the jury verdict form, although the judge’s instructions employed the newer terminology. MCL 257.625(3). MCL 257.625(1).

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BORRELLO, J. This conflict panel was convened to resolve an inconsistency between the vacated portion of this Court’s prior opinion in Kik v Sbraccia, 268 Mich App 690; 708 NW2d 766 (2005) (Kik I), vacated in part 268 Mich App 801 (2005), and this Court’s earlier decision in Wesche v Mecosta Co Rd Comm, 267 Mich App 274; 705 NW2d 136 (2005). In accordance with MCR 7.215(J)(1), the panel in Kik I was required to follow the precedent of Wesche, which held that loss-of-consortium claims are not included in the motor-vehicle exception to governmental immunity found in MCL 691.1405 and that such claims were therefore barred by governmental immunity. Were it not for Wesche and MCR 7.215(J)(1), the panel in Kik I would have affirmed the decision of the lower court that damages for derivative claims were available in an action brought pursuant to the motor-vehicle exception, MCL 691.1405. The conflict at issue involves whether damages for derivative claims such as loss of consortium are available in actions brought pursuant to the motor-vehicle exception. MCL 691.1405. In Wesche, a panel of this Court held that because loss-of-consortium claims do not encompass bodily injury or property damage, they are not included in the motor-vehicle exception to governmental immunity. Wesche, supra at 278-279. Therefore, this Court affirmed the trial court’s ruling that the plaintiff wife’s loss-of-consortium claim was barred by governmental immunity. Id. at 279-280. In Kik I, this Court held that the panel’s decision in Wesche was inapplicable to wrongful death cases, Kik I, supra at 706-707, 712 n 42; therefore, Wesche did not apply to plaintiffs’ claim for loss of society and companionship for the death of their daughter. However, the panel in Kik I concluded that the claim for loss of consortium brought by plaintiff husband against defendants Kinross Charter Township and Kinross Charter Township EMS (but not Sbraccia, the driver of the ambulance, individually), relating to the injuries suffered by plaintiff wife in the accident, did fall squarely within the scope of Wesche. Id. at 707. In Kik I, the panel opined “that Wesche was incorrectly decided” and stated that “were we not obligated by MCR 7.215(J) to follow Wesche, we would reach a different conclusion ...Id. at 711. However, because it was constrained to do so by MCR 7.215(J), this Court followed Wesche and reversed the trial court’s denial of summary disposition regarding plaintiff husband’s claim for loss of consortium arising out of his wife’s injuries and remanded the matter to the trial court for entry of summary disposition in favor of the township and the township’s EMS on that claim. Id. at 711-712. Following due consideration of the analyses of the competing viewpoints regarding this conflict issue in Wesche and Kik I, we resolve the conflict in accordance with the panel’s opinion in Kik I. We are persuaded by the panel’s reasoning in part III of the Kik I opinion and adopt its reasoning and analysis as our own. We therefore expressly adopt and reinstate part III of the panel’s opinion in Kik I and overrule part III of the Wesche opinion. We direct the trial court to vacate its order granting summary disposition in favor of the township and the township’s EMS with respect to plaintiff husband’s claim for loss of consortium arising from plaintiff wife’s injuries. Vacated and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Cavanagh, Smolensk, and Fort Hood, JJ., concurred with Borrello, J.

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PER CURIAM. The prosecution appeals as of right the trial court’s order granting defendant’s motion to dismiss three counts of being a felon in possession of a firearm, MCL 750.224f, and three counts of possessing a firearm during the commission of a felony, MCL 750.227b. We reverse and remand for proceedings consistent with this opinion. MCL 750.224f provides in relevant part: (1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist: (a) The person has paid all fines imposed for the violation. (b) The person has served all terms of imprisonment imposed for the violation. (c) The person has successfully completed all conditions of probation or parole imposed for the violation. (2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive or distribute a firearm in this state until all of the following circumstances exist: (a) The expiration of 5 years after all of the following circumstances exist: (i) The person has paid all fines imposed for the violation. (ii) The person has served all terms of imprisonment imposed for the violation. (iii) The person has successfully completed all conditions of probation or parole imposed for the violation. (b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to [MCL 28.424], (5) As used in this section, “felony” means a violation of a law of this state, or of another state, or of the Unites States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law. (6) As used in subsection (2), “specified felony” means a felony in which 1 or more of the following circumstances exist: (i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or the property of another may be used in the course of committing the offense. (ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance. (Hi) An element of that felony is the unlawful possession or distribution of a firearm. (iv) An element of that felony is the unlawful use of an explosive. (u) The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson. Defendant was convicted in 1975 of breaking and entering a sporting goods store in violation of MCL 750.110. Defendant applied for and was granted licenses to purchase handguns by the Muskegon County Sheriffs Department and was deemed eligible to purchase long guns from a federally licensed gun dealer. However, defendant did not seek restoration of his right to possess firearms from his local concealed weapons board pursuant to MCL 28.424. Defendant successfully moved the trial court to dismiss the instant charges on the basis that his prior conviction was not a specified felony under MCL 750.224f and, therefore, his right to possess firearms was automatically restored under MCL 750.224f(l) well before his arrest on the instant charges in September 2004. On appeal, the prosecution contends that defendant’s 1975 conviction constitutes a specified felony under MCL 750.224f and that, because defendant failed to have his right to possess firearms restored as required by MCL 750.224f(2)(b), the trial court erred in granting. defendant’s motion to dismiss. We agree. This Court has previously determined that breaking and entering a building in violation of MCL 750.110 is a specified felony within the meaning of MCL 750.224f. Tuggle v Dep’t of State Police, 269 Mich App 657, 663; 712 NW2d 750 (2005). That the Legislature also chose to separately identify breaking and entering an occupied dwelling as a specified felony, MCL 750.224f(6)(c), does not negate this conclusion. Id. at 664. Nor can this conclusion be avoided by judicial construction referring to and relying on legislative history. People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004). The plain language of MCL 750.224f(6) clearly and unambiguously includes breaking and entering as a specified felony because, by its nature, breaking and entering involves the use of physical force, or the substantial risk that physical force may be used, against the property of another in the commission of the offense. Tuggle, supra at 666-667. Therefore, the trial court erred in granting defendant’s motion to dismiss. Defendant also argues that, as applied to him in the instant case, MCL 750.224f is unconstitutionally vague. We disagree. “To determine whether a statute is void for vagueness, a court examines the entire text of the statute and gives the statute’s words their ordinary meanings.” People v Piper, 223 Mich App 642, 646; 567 NW2d 483 (1997). A statute is unconstitutionally vague if persons of ordinary intelligence must necessarily guess at its meaning. People v Munn, 198 Mich App 726, 727; 499 NW2d 459 (1993). MCL 750.224f(6)(i) plainly and unquestionably encompasses breaking and entering in violation of MCL 750.110. Tuggle, supra at 666-667. Therefore, defendant cannot establish that the statute is unconstitutionally vague. Stated differently, the ordinary and plain language of MCL 750.224f(6) provides, in clear and understandable terms, that a person who is convicted of a felony involving “the use, attempted use, or threatened use of force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used,” is subject to the more stringent requirements for restoration of firearms rights set forth in MCL 750.224f(2). Breaking and entering is a crime that clearly fits within the language. Therefore, the statute provides adequate notice to persons of ordinary intelligence concerning the conduct proscribed. Munn, supra at 727. Finally, defendant argues that the instant prosecution is barred by the doctrine of entrapment by estoppel because he applied for and received from appropriate governmental authorities licenses to purchase handguns and authorization to purchase firearms. The doctrine of entrapment by estoppel applies to preclude prosecution when a defendant establishes by a preponderance of the evidence (1) that a government official advised the defendant that certain illegal conduct was legal, (2) that the defendant actually relied on the government official’s statements, (3) that the defendant’s reliance was reasonable and in good faith given the identity of the government official, the point of law represented, and the substance of the official’s statements, and (4) that, given the defendant’s reliance, prosecution would be unfair. People v Woods, 241 Mich App 545, 558-560; 616 NW2d 211 (2000). As the Woods Court explained: [T]he defense should be utilized only where an earnest, law-abiding citizen attempts in good faith to comply with the law by consulting an appropriate government official, but unfortunately receives misinformation. These are circumstances where prosecution would be so unfair as to violate the citizen’s right to due process. However, when the citizen knows or should know better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee, prosecution is not unfair and estoppel by entrapment [sic] should have no application. [Id. at 560 (citation omitted).] When a defendant claims entrapment, including entrapment by estoppel, the proper procedure is for the trial court to hold an evidentiary hearing, at which the defendant bears the burden of proving entrapment by a preponderance of the evidence. Id. at 554. The trial court held an evidentiary hearing on defendant’s motion to dismiss. At that hearing, the trial court was presented with limited evidence relating to defendant’s purchase of certain firearms. However, the trial court made clear that the hearing was not for the purpose of determining whether defendant could establish entrapment by estoppel. The trial court made no determination whether defendant relied, reasonably and in good faith, on statements of a government official in acquiring and possessing firearms. Indeed, the trial court specifically declined to consider the testimony presented at the hearing, concluding that it was not pertinent to the question before it, that being whether defendant’s breaking and entering conviction constituted a specified felony under MCL 750.224f. Therefore, we remand this matter for the reinstate ment of the charges against defendant and for a proper consideration of defendant’s assertion of the defense of entrapment by estoppel. Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

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PER CURIAM. Defendants appeal by leave granted the trial court’s order denying their motion for summary disposition of plaintiffs’ claims pursuant to MCR 2.116(C)(7) (period of limitations). We affirm. I. FACTS This case arises out of plaintiffs refilling of a prescription at defendant Raksha Corporation, doing business as Crown Pharmacy, on November 11, 2000. Plaintiff presented a prescription for 0.125-milligram tablets of Mirapex. According to plaintiff, defendant Valerie Randall, who is not a pharmacist, and who was not acting under the supervision of a pharmacist, refilled the prescription with one-milligram tablets of Mirapex. On November 13, 2000, plaintiff took a one-milligram tablet in the afternoon, and two more tablets in the early evening. According to the complaint, after ingesting the two one-milligram tablets in the evening, plaintiff began to experience agitation, loss of balance, severe dizziness, and nausea. Plaintiff spent the next several hours sick to her stomach and vomiting. Plaintiffs husband, Joseph Kuznar, awoke to the sound of a loud “thump” in the bathroom around midnight, and discovered his wife unconscious with her head on the bathtub and not appearing to be breathing. Kuznar immediately drove her to Botsford Hospital, where she was treated in the emergency room for several hours, and where it was determined that she had sustained an adverse reaction to the one-milligram Mirapex tablets. After plaintiff was released from the hospital, she continued to suffer severe headaches, mental confusion, and had a large bump on her forehead, causing her to miss time from work. Plaintiffs filed their complaint on October 7, 2003. In regard to Crown Pharmacy, plaintiffs specifically alleged that it was negligent in: a. Failing to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage. b. Failing to timely recognize the error made in dispensing medications. c. Allowing persons other than a licensed pharmacist to refill prescriptions. d. Failing to have a licensed pharmacist available on site to oversee, supervise and control the actions of persons not pharmacists who refilled prescriptions. In regard to Randall, plaintiffs specifically alleged negligence in: a. Dispensing medication which she was not qualified to dispense as she was not a licensed pharmacist. b. Failing to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage. c. Failing to timely recognize the error made in dispensing medications. d. Failing to consult with a licensed pharmacist before dispensing medications. Defendants moved for summary disposition, arguing that, contrary to the allegations in plaintiffs’ complaint, plaintiffs’ claims sound in medical malpractice rather than negligence, and plaintiffs’ complaint was not timely filed within the two-year limitations period applicable to medical malpractice actions. Plaintiffs responded, arguing that Randall is not a licensed pharmacist and is, therefore, not subject to the medical malpractice statutes, and that no medical expert testimony would be necessary for a jury to understand that an unlicensed individual cannot dispense medication without the supervision of a licensed pharmacist, or that dispensing eight times the prescribed dosage is an error that can lead to foreseeable injury. The trial court denied defendants’ motion. Defendants appeal the trial court’s denial of summary disposition. Defendants contend, as they did below, that plaintiffs’ claims sound in medical malpractice, not ordinary negligence, and therefore plaintiffs’ complaint was not timely filed. Defendants argue that Crown Pharmacy is a licensed health facility, that Randall was an agent of that health facility, and that medical expert testimony will be necessary for a jury to determine whether there was negligence in the dispensing of medicine and in the supervision of Randall. II. ANALYSIS The issue presented is whether plaintiffs’ claims sound in medical malpractice or ordinary negligence. The answer to this question determines whether plaintiffs’ claims should have been dismissed for failure to file the complaint within the applicable statutory period of limitations. The statutory period of limitations for a medical malpractice action is two years, whereas the statutory period of limitations for an ordinary negligence action is three years. See MCL 600.5805(6) and MCL 600.5805(10). Defendants contend that plaintiffs alleged medical malpractice and their claims are barred by the two-year limitations period. We disagree. Whether a period of limitations applies in particular circumstances is a legal question that this Court considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444-445; 671 NW2d 150 (2003). We [also] review de novo decisions regarding summary disposition motions. Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court “consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004), quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001) (footnotes omitted).] In determining whether plaintiffs alleged medical malpractice or ordinary negligence, we disregard the label plaintiffs applied to their claims. It is well established that “the gravamen of an action is determined by reading the claim as a whole,” Simmons v Apex Drug Stores, Inc, 201 Mich App 250, 253; 506 NW2d 562 (1993), and by looking “beyond the procedural labels to determine the exact nature of the claim,” MacDonald v Barbarotto, 161 Mich App 542, 547; 411 NW2d 747 (1987). In Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004), our Supreme Court set forth the “two defining characteristics” of a medical malpractice claim: “First, medical malpractice can occur only ‘ “within the course of a professional relationship.” ’ Second, claims of medical malpractice necessarily ‘raise questions involving medical judgment.’ ” (Citations omitted.) The Bryant Court explained: A professional relationship sufficient to support a claim of medical malpractice exists in those cases in which a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, were subject to a contractual duty that required that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff. [Id. (citations omitted).] Addressing the question whether the alleged negligence occurred within a professional relationship, we turn to relevant statutes bearing on the parties’ relationship. With respect to medical malpractice actions, MCL 600.5838a sets forth the time frames for pursuing such actions, which may be filed against “a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment....” MCL 600.5838a(l). Under § 5838a(l)(a), “ ‘Licensed health facility or agency’ means a health facility or agency licensed under article 17 of the public health code . .. being sections 333.20101 to 333.22260 .. . .” Because the licensure requirement applicable to a pharmacy appears in article 15 of the public health code, specifically MCL 333.17741, and not in article 17, a pharmacy does not qualify as a “licensed health facility or agency” subject to malpractice actions, as set forth in MCL 600.5838a(l). Although we conclude today that a pharmacy is not a licensed health facility subject to malpractice actions, we recognize that this Court has held that pharmacists are “licensed health care professionals” subject to medical malpractice actions: Pharmacists are considered health care providers for the purposes of our malpractice statutes. Becker v Meyer Rexall Drug Co, 141 Mich App 481, 485; 367 NW2d 424 (1985), citing MCL 333.17711; MSA 14.15(17711) (“A person shall not engage in the practice of pharmacy unless licensed or otherwise authorized by this article.”). The limitation period of MCL 600.5805(4); MSA 27A.5805(4)[ ] applies to an action where it is alleged that a licensed pharmacist mistakenly dispensed the wrong drug, thus harming the plaintiff. [Simmons, supra at 253.] In both Becker and Simmons, however, the plaintiffs alleged negligent acts by a pharmacist, Becker, supra at 483; Simmons, supra at 251. And a pharmacist is a “licensed health care professional.” MCL 600.5838a(l)(b). This case is distinguishable from Becker and Simmons in that plaintiffs have not alleged negligence of a licensed pharmacist, but rather of Randall, who is a pharmacy technician, not a licensed health care professional subject to malpractice suits under MCL 600.5838a(l)(b). We also recognize that this Court has held that, as contemplated by MCL 600.5838a(l), the negligent acts of unlicensed agents or employees of licensed health facilities may be subject to medical malpractice claims. Bell v Mikkola, 193 Mich App 708, 709-710; 485 NW2d 143 (1992). As explained above, however, Crown Pharmacy is not a “licensed health facility or agency” pursuant to MCL 600.5838a(l)(a). Because neither Randall nor Crown Pharmacy qualifies as a licensed health care professional or a licensed health facility, and because plaintiffs’ complaint does not allege negligent acts of a licensed pharmacist, we conclude that the alleged negligent acts of defendants did not occur in the course of a professional relationship with plaintiff. Given the absence of a professional relationship, we need not address the second defining characteristic of a medical malpractice claim, i.e., whether the alleged malpractice raises questions involving medical judgment. The absence of a professional relationship alone excludes plaintiffs’ claims from the realm of medical malpractice. Accordingly, the procedural and substantive requirements governing medical malpractice actions do not apply in this case. Bryant, supra at 422. Therefore, the trial court properly denied defendants’ motion for summary disposition premised on the two-year medical malpractice period of limitations. Plaintiffs timely commenced their negligence action on October 7, 2003, within three years of the alleged acts of negligence that occurred in November 2000. MCL 600.5805(10). Affirmed. Plaintiff Joseph Kuznar’s claims are derivative of plaintiff Judith Kuznar’s claims. For this reason, when used in the singular, “plaintiff” refers to Judith Kuznar. Defendants refer to Randall as a “pharmacy technician.” There are also procedural requirements that must be fulfilled to properly initiate a medical malpractice action. For example, a plaintiff must file, 182 days before the action is commenced, notice of intent to file suit, and file, along with the complaint, an affidavit of merit. MCL 600.2912b; MCL 600.2912d. It is undisputed that plaintiffs did not comply with these requirements. When the cause of action accrued in this case, November 2000, the medical malpractice period of limitations appeared at MCL 600.5805(5). This statute defines a “licensed health care professional” as “an individual licensed or registered under article 15 of the public health code .. . being sections 333.16101 to 333.18838,” and the licensure requirement applicable to pharmacists appears in article 15, specifically MCL 333.17711. Although the rationale supporting the trial court’s denial of summary disposition is not entirely clear, this Court will not reverse when a circuit court reaches a correct result for a wrong reason. Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 313; 696 NW2d 49 (2005).

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DONOFRIO, P.J. Plaintiff appeals as of right the trial court’s order granting summary disposition to defendants. This case involves a challenge to the authority of Bay Mills Community College (BMCC) to authorize “public school academies” also referred to as “charter schools.” Because we cannot conclude that plaintiff has standing to challenge the expenditure of state funds under the facts before us, we do not reach the substantive issue whether the public school academies BMCC has chartered are considered public schools and are eligible for public funding. We dismiss this appeal for lack of standing. I. FACTS BMCC is a land grant school recognized under the federal Tribally Controlled College or University Assistance Act and is accredited by the North Central Association of Colleges and Schools. According to its charter, BMCC’s district consists of the state of Michigan. BMCC’s charter provides its board with the authority to issue contracts to create chartered public schools as provided under Michigan law. The record reflects that since December 2000, BMCC has chartered and opened 32 public school academies. BMCC is run by a nine-member board of regents. Five of those regents are selected from the Bay Mills Indian Community Executive Council and serve two year terms. One is the business manager or representative of the Sault Ste. Marie Tribe of Chippewa Indians, one is the business manager or representative of the Grand Traverse Band of Ottawa/Chippewa Indians, one is the business manager or representative of the Little Traverse Bay Bands of Odawa Indians, and one is the executive director of the Inter-Tribal Council of Michigan, Inc. Additionally, there is one nonvoting member, the student body president of BMCC. Plaintiff Michigan Education Association (MEA) represents approximately 136,000 members throughout the state of Michigan, including about 70,000 grade K-12 instructors. Testimony reveals that each member pays approximately $600 a year in dues to the MEA. In the instant case, plaintiff brought suit alleging, among other things, that BMCC’s public chartered academies are not public schools and, therefore, the payment of public funds to BMCC’s public chartered academies violates the Michigan Constitution’s provision against public funding for nonpublic schools. The trial court dismissed all but the pubhc-funding count for lack of standing. The trial court found standing for this allegation on the basis of plaintiff meeting the legislatively conferred standing granted for a nonprofit organization contesting the expenditure of state funds. The trial court then ruled that the schools in question were public schools entitled to public funds. This appeal followed. II. ANALYSIS “Whether a party has legal standing to assert a claim [is] a question of law that we review de novo.” Heltzel v Heltzel, 248 Mich App 1, 28; 638 NW2d 123 (2001). “The question of jurisdiction is always within the scope of this Court’s review.” Walsh v Taylor, 263 Mich App 618, 622; 689 NW2d 506 (2004). A. CONSTITUTIONAL STANDING In this case, defendants argue that plaintiff does not meet the constitutional test required for standing and that the Legislature may not statutorily confer standing on a party that does not otherwise meet the constitutional requirements for standing. Plaintiff counters that, as a domestic nonprofit organization challenging the illegal expenditure of state funds, it has statutorily granted standing to institute this suit. We begin our analysis with the observation that our Supreme Court has indeed repeatedly endorsed the test for standing articulated by the United States Supreme Court in Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992). See Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 628-629; 684 NW2d 800 (2004); Crawford v Dep’t of Civil Service, 466 Mich 250, 258; 645 NW2d 6 (2002); Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739-740; 629 NW2d 900 (2001). In Nat'l Wildlife, our Supreme Court stated that, at a minimum, standing requires the following three elements: “First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly.. . traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Nat’l Wildlife, supra at 628-629, quoting Lee, supra at 739, quoting Lujan, supra at 560-561.] Thus, ordinarily, plaintiff must meet the constitutional minimum criteria for standing in order to have standing. First, plaintiff has neither alleged nor suffered the required “injury in fact.” Plaintiff presented no evidence that it suffered an invasion of a legally recognized interest that is actual or imminent, not hypothetical or conjectural. Specifically, our review of the record reveals that plaintiff provides nothing beyond bare assertions that the public funding of BMCC’s charter schools injures plaintiffs members, and does not identify an injury that is “ ‘concrete and particularized,’ ” and “ ‘ “actual or imminent.” ’ ” Nat’l Wildlife, supra at 628, quoting Lee, supra at 739, quoting Lujan, supra at 560. Any alleged injury to plaintiff is based on conjecture and speculation. Second, plaintiff has provided us nothing more than the simple assertion that BMCC’s public funding reduces plaintiffs members’ wages without any supporting evidence. While we can envision a scenario in the abstract in which BMCC’s public funding does indirectly or even directly reduce the wages or wage increases of plaintiffs members, it takes more than imagination to establish the required causation element of standing. Nat’l Wildlife, supra at 628-629, quoting Lee, supra at 739, quoting Lujan, supra at 560. Third, plaintiff has provided no substantive evidence that the alleged harm could even be “ ‘ “redressed by a favorable decision.” ’ ” Nat’l Wildlife, supra at 629, quoting Lee, supra at 739, quoting Lujan, supra at 561. Plaintiff offers no evidence to show that it is “ ‘ “likely,” ’ ” or even merely “ ‘ “speculative,” ’ ” that, if all public funds to BMCC schools are cut off, plaintiffs members’ salaries will increase. Nat’l Wildlife, supra at 629, quoting Lee, supra at 739, quoting Lujan at 561. There is absolutely no way to predict with any degree of certainty how the public dollars earmarked for BMCC schools would be appropriated if BMCC funding was discontinued. Plaintiff has provided no evidence whatsoever that these monies would be directly funneled into plaintiffs members’ salaries. More over, there is another possible scenario. Even if plaintiff were to prevail, the BMCC schools might switch to a different chartering organization, such as a school district or local community college, where they would again be eligible for public funding. Plaintiff has not provided, and we cannot ascertain, any means of redress by a favorable decision of this Court. Nat’l Wildlife, supra at 629. With myriad different scenarios possible, and not a shred of real evidence provided by plaintiff regarding any of the elements of standing, we must relegate its arguments to those of mere speculation, hypothesis, and conjecture. Mere hypothetical or conjectural injuries do not satisfy the constitutional requirements for standing. Nat’l Wildlife, supra at 628, quoting Lee, supra at 739, quoting Lujan, supra at 560. Therefore, plaintiff has not provided sufficient evidence to satisfy the constitutional elements required for standing. Nat’l Wildlife, supra at 628-629. b. statutorily conferred standing In Nat’l Wildlife, our Supreme Court extensively discussed standing requirements and specifically addressed whether the Legislature can confer standing by statute. Nat’l Wildlife, supra at 614-615. Our Supreme Court counseled that judicial power, while not specifically defined by the Michigan Constitution, “is distinct from both the legislative and executive powers.” Id. at 614. The Court elaborated, stating: Perhaps the most critical element of the “judicial power” has been its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, Muskrat v United States, 219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in which the plaintiff has suffered a “particularized” or per sonal injury. Massachusetts v Mellon, 262 US 447, 488; 43 Ct 597; [67 L Ed 1078] (1923). Such a “particularized” injury has generally required that a plaintiff must have suffered an injury distinct from that of the public generally. Id. [Id. at 615.] The Court indicated that without the particularized injury requirement, “there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate.” Id. It opined that those claims that did not meet the particularized injury requirement would inappropriately involve the judiciary in “deciding public policy, not in response to a real dispute in which a plaintiff had suffered a distinct and personal harm, but in response to a lawsuit from a citizen who had simply not prevailed in the representative processes of government.” Id. It went on to explain that this “expanded power” would have dire consequences, because it would grant the most power to the least accountable branch of the government. Id. at 615-616. The Nat’l Wildlife Court condemned the use of “the judicial branch as a forum for giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail.” Id. at 616. After engaging in a thorough analysis of both federal and state law, the Nat’l Wildlife Court ultimately opined that, but for a few enumerated exceptions, the definitions, of judicial power in the United States and Michigan constitutions are identical and that both require an actual case or controversy in order to establish standing. Nat’l Wildlife, supra at 624-625, 627-628. It was the position of our Supreme Court that to allow the Legislature to expand the powers of the judiciary by conferring standing on a party that does not otherwise meet the constitutional test for standing violates the separation of powers because it defies the long-held historical definition of “judicial power.” Id. at 615-616. In the end, however, the Court ultimately found it unnecessary to reach the issue of statutorily conferred standing because it found that the plaintiffs met the constitutional requirements for standing without regard to the statute involved. Id. at 632. Our Supreme Court again discussed the issue of statutorily conferred standing in Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286; 715 NW2d 846 (2006). In Federated Ins, the issue was whether the Attorney General had authority to intervene to appeal a judgment of the Court of Appeals on behalf of the people and a state agency when the named losing parties did not themselves seek review in the Supreme Court, which implicated the constitutional authority of the judiciary. Id. at 288, 290. The Attorney General argued that he had authority to intervene on the basis of two statutes, MCL 14.101 and MCL 14.28. Id. at 293-294. While both relying on and further expanding its discussion of standing in Nat’l Wildlife, our Supreme Court held that the Attorney General had no authority to intervene to appeal the Court of Appeals judgment under these statutes because a justiciable controversy no longer existed in light of the fact that the Attorney General did not represent an “aggrieved party.” Id. at 290-295, 297. In particular, the Supreme Court held: To the extent one might read MCL 14.101 or MCL 14.28 as allowing the Attorney General to prosecute an appeal from a lower court ruling without the losing party below also appealing, and without the Attorney General himself being or representing an aggrieved party, the statutes would exceed the Legislature’s authority because, except where expressly provided, this Court is not constitutionally authorized to hear nonjusticiable controversies. Nat’l 'Wildlife Federation, supra at 614-615. To give these statutes such a reading would contravene an operative presumption of this Court that we presume constitutional intent on the part of the Legislature. See Phillips v Mirac, Inc, 470 Mich 415, 422, 685 NW2d 174 (2004). [Federated Ins, supra at 294-295.] This Court has also discussed the issue of statutorily conferred standing in Michigan Citizens for Water Conservation v Nestle Waters North America Inc, 269 Mich App 25; 709 NW2d 174 (2005). In Michigan Citizens, the issue presented was whether the plaintiffs had standing to bring suit under MCL 324.1701(1) when they could not otherwise demonstrate that they suffered a particularized injury and could not otherwise establish constitutional standing under the test stated in Lee. Id. at 85. While the Michigan Citizens panel members did not ultimately agree regarding the Legislature’s grant of standing under the specific facts of that case, id. at 112-114 (opinions of MURPHY, RJ., and WHITE, J.), we find Judge SMOLENSKl’s analysis in the lead opinion instructive. Judge SMOLENSKI counseled as follows: Although the majority in [Nat’l Wildlife] declined to specifically examine the constitutionality of MCL 324.1701(1), it clearly determined that the Legislature was without the authority to expand standing beyond the limits imposed by Michigan’s constitution. Because the Court in [Nat’l Wildlife] intentionally took up and discussed the Legislature’s authority to confer broader standing, its decision on that matter is binding on this Court. People v Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001). Consequently, we must hold that, to the extent that it confers standing broader than the limits imposed by Michigan’s constitution, as determined by Lee and [Nat’l Wildlife], MCL 324.1701(1) is unconstitutional. [Id. at 87.] Here, plaintiff argues that it has standing to challenge the expenditure of public funds pursuant to the Michigan Constitution’s provision forbidding the expenditure of public funds on nonpublic schools, Const 1963, art 8, § 2, by way of MCL 600.2041(3) and MCR 2.201(B)(4). Const 1963, art 8, § 2 states: The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school. MCL 600.2041(3) provides in relevant part that “an action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute relating thereto may be brought in the name of a domestic nonprofit corporation organized for civic, protective, or improvement purposes . ..MCR 2.201(B)(4)(a) likewise provides that an action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute in this regard may be brought by a domestic nonprofit corporation organized for civic, protective, or improvement purposes. It is plaintiffs argument that state funding for schools chartered by BMCC violates Const 1963, art 8, § 2, and therefore it, as a nonprofit organization, has standing to sue on behalf of the interests of its members if the members would have standing to sue individually, by operation of MCL 600.2041(3) and MCR 2.201(B)(4). Nat’l Wildlife, supra at 629; Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83, 90; 662 NW2d 387 (2003). It is beyond reasonable dispute that plaintiffs membership includes Michigan taxpayers. Thus, were plaintiff able to meet the constitutional requirements for standing, we would conclude that plaintiff has standing to sue to indicate its taxpayer-members’ interests in challenging an expenditure of state funds that allegedly violate the specific constitutional bar on state funding of nonpublic schools. But we are required to follow our Supreme Court’s decision on the matter of the Legislature’s authority to confer broader standing. Higuera, supra at 437. We have clearly determined that plaintiff cannot establish the constitutional elements for standing. Consequently, we hold that to the extent that MCL 600.2041(3) and MCR 2.201(B)(4) confer standing broader than the limits imposed by Michigan’s constitution, as determined by Lee and Nat’l Wildlife, MCL 600.2041(3) and MCR 2.201(B)(4) are unconstitutional. III. CONCLUSION Plaintiff lacks standing because it has no claim of an actual, particularized injury. To the extent that MCL 600.2041(3) and MCR 2.201(B)(4) confer standing broader than the limits imposed by Michigan’s constitution, they are unconstitutional and do not confer standing on plaintiff to bring suit. Because we cannot conclude that plaintiff has standing to challenge the expenditure of state funds under the facts before us, we do not reach the substantive issue whether the public academies BMCC has chartered are considered public schools and are eligible for public funding. Dismissed. The exceptions listed included the ability of the Michigan Supreme Court to offer advisory opinions, the ability of taxpayers to sue to enforce the Headlee Amendment, and the ability of any citizen of the state to bring injunctive or mandamus proceedings to enforce state civil service laws. Nat’l Wildlife, supra at 624-625.

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Per Curiam. This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve a conflict that arose between our decision in Mazumder v Univ of Michigan Regents, 270 Mich App 42; 715 NW2d 96 (2006), and our later decision in this case, Ward v Siano, 270 Mich App 584; 718 NW2d 371 (2006), vacated in part 270 Mich App 801 (2006). Pursuant to our conflict resolution rules, this Court vacated those portions of Ward that conflicted with Mazumder. MCR 7.215(J)(5). We now address the issue that the original panel in Ward would have decided differently if it were not bound to follow Mazumder. MCR 7.215(J)(1), (2). The issue is whether a wrongful death plaintiff may rely on equitable tolling to escape the retroactive effect of our Supreme Court’s decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). In Waltz, our Supreme Court stated that the two-year period contained in the wrongful death saving statute, MCL 600.5852, was not tolled by serving a medical malpractice defendant with a notice of intent to sue. Waltz, supra at 655. Our Court recently reaffirmed that Waltz applies retroactively, Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 507-510; 722 NW2d 666 (2006), so plaintiffs who filed before Waltz, but incorrectly and detrimentally relied on their notice of intent to sue to toll the running of the saving statute, are barred from pursuing their claims. In Mazumder, supra at 62, however, this Court applied the doctrine of equitable tolling to a plaintiff who had relied on her understanding of the law as it existed before Waltz was issued. The dissent in Mazumder pointed out that uniform application of equitable tolling to similar plaintiffs would effectively circumvent those decisions that applied Waltz retroactively. Mazumder, supra at 71-72 (HOEKSTRA, EJ., concurring in part, dissenting in part). In our previous opinion in this case, this Court agreed that the retroactive application of Waltz could not coexist with a blanket exception of equitable tolling woven solely from the general unfairness of retroactively applying Waltz. We concur with that reasoning. Because our Court has held that Waltz applies retroactively, we resolve the conflict in favor of our initial opinion in this case. We reinstate its reasoning and adopt it as the rule of law. Equitable or judicial tolling ordinarily applies to a specific extraordinary situation in which it would be unfair to allow a statute of limitations defense to prevail because of the defendant’s bad faith or other particular and unusual inequities. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564. Absent statutory language allowing it, judicial tolling is generally unavailable to remedy a plaintiffs failure to comply with express statutory time requirements. See 51 Am Jur 2d, Limitation of Actions, § 177, p 565 (“Equitable tolling is not permissible if it is inconsistent with the text of the relevant statute.”); see also Secura Ins Co v Auto-Owners Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000); Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 285 n 12; 696 NW2d 646 (2005). Inequities that justify judicial tolling must arise independently of the plaintiffs failure to diligently pursue the claim in accordance with the statute. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565; see also Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586, 590-592; 702 NW2d 539 (2005). In Waltz, supra, our Supreme Court held that the plain language of MCL 600.5856 prevented it from tolling the saving statute, MCL 600.5852. The Court resolved the dispute over the relevant time frames specifically on the basis of statutory interpretation. Waltz, supra at 651-652. Therefore, it essentially concluded that the Legislature never intended to allow a personal representative to bring a wrongful death claim outside the two-year period in MCL 600.5852, despite the filing of a notice of intent to sue. See id. at 651. In light of Waltz, any attempt on our part to excuse nonconformity with the statute would amount to amending the statute — in effect, legislating from the bench. See Devillers, supra at 590 n 65. This is not the function of the judiciary. Id. Although a court may limit its novel interpretation of a statute to prospective application, Pohutski v City of Allen Park, 465 Mich 675, 696-697; 641 NW2d 219 (2002); see also Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004), this Court has held that Waltz has full retroactive effect. Mullins, supra at 507-510. To allow a wholesale disregard of Waltz's retroactive application on the basis of individual “unfairness” to each plaintiff would allow the constant exceptions collectively to swallow the rule. See Devillers, supra at 586-587, 590 n 65. The delicate and specialized tool of judicial tolling is ill-suited to supplant the expansive, all-encompassing remedy of limiting a rule to prospective application. By proposing to apply judicial tolling to every medical malpractice wrongful death plaintiff who is “unfairly” subjected to the time limits clarified in Waltz, the rationale of Mazumder subverts, piecemeal, our decision that Waltz applies retroactively. Stated differently, if reliance on the pre-Waltz understanding of the law were alone sufficient to justify a litigant’s failure to comply with Waltz’s standards, our appellate courts would have limited the decision to prospective application. They did not. In our original decision in this case, as in Mazumder, plaintiff failed to demonstrate any inequity independent of his unknowing failure to comply with the retroactive time limits delineated in Waltz. This “inequity” is inadequate to sustain a claim for judicial tolling, because it is directly related to plaintiffs unassisted failure to comply with the retroactively applicable time restraints, not on intervening, external circumstances. See 51 Am Jur 2d, Limitation of Actions, § 174, pp 563-564, and § 177, p 565. Therefore, we adopt the reasoning contained in Ward, conclude that judicial tolling should not operate to relieve wrongful death plaintiffs from complying with Waltz’s time restraints, and overrule those portions of Mazumder that conflict with this opinion. The circuit court’s order granting summary disposition to defendants is affirmed. SAWYER, EJ., and SAAD, Zahra, and Owens, JJ., concurred. FORT Hood, J., concurred in the result only.

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Snow, J. The defendant is a Michigan corporation, and on or about October 23, 1920, it sold to plaintiffs $1,100 of its capital stock, without first having applied to the Michigan securities commission for, or having obtained, permission to make such sale under sections 11945 to 11969 of the Compiled Laws for 1915. Section 11958 provides: “It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State, any stocks, bonds or other securities (except as expressly exempt herein), unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * * Section 11967 provides: “Any person or persons who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor.” * * * This act, commonly known as the “blue sky law,” was amended in 1921 (Act No. 404, Pub. Acts 1921 [Comp. Laws Supp. 1922, §§ 11945-11969]) and re pealed in 1923 by Act No. 220, Pub. Acts 1923. It was however in force when the sale of stock in the instant case was made, but had been repealed when action to recover the amount paid for the stock was commenced, which was in July, 1925. The facts are not in dispute, but defendant contends that the repeal of the 1915 statute had the effect of abolishing plaintiff’s cause of action, which is particularly evidenced by the following saving clause in the 1923 act, viz.: “All proceedings pending before said Michigan .securities commission created by said act number .forty-six of the Public Acts of nineteen hundred ■fifteen, by virtue of any law of this State, shall be continued by the commission created by this act; all actions, civil and criminal, pending under said act, shall be continued and completed thereunder; and all securities approved by the Michigan securities commission under act number forty-six of the Public Acts of nineteen hundred fifteen, shall be legally salable unless otherwise ordered by the commission created under this act.”' * * * Act No. 220, Pub. Acts 1923, § 1. . This is the only question in the case. The sale of the stock to plaintiffs in the first instance was admittedly unlawful. Section 11958, 3 Comp. Laws 1915; Edward v. Ioor, 205 Mich. 617, 624 (15 A. L. R. 256); and Farm Products Co. v. Jordan, 229 Mich. 235. Plaintiffs had the right to rescind the contract of purchase and recover their money back. Was this right of action defeated by the repeal of the statute above referred to? We are constrained to hold that it was not. Neither the remedy nor the right of action were afforded by the statute. They existed independent of it, and the repeal of the statute in no way affected them. Neither can it with reason be .contended that section 1 of Act No. 220, Pub. Acts 1923, above referred to (which provided for the continuance before the newly- created commission of all pending matters before the old one, together with the continuance and completion of all actions under the act then pending and uncompleted) , constituted a bar to other rights of action that had accrued by reason of previous violations of the law repealed, although not then commenced. Plaintiff’s right of action in the instant case is not under the 1915 blue sky law, but accrues to them as a contract right of rescission, followed by the right to prosecute an action of assumpsit, because defendant sold them stock in its corporation when it was illegal to do so. The judgment of the circuit court is affirmed, with costs to appellee. Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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Steere, J. Plaintiff filed this bill asking a receivership, injunction and accounting based on an alleged agreement between the parties named in the bill as a joint adventure with defendant. In a subsequent affidavit and his testimony at the hearing he calls it a partnership. Defendant answered issuably directly denying any contractual relations whatever between it and plaintiff. Plaintiff alleges in his bill that on September 6, 1923, he entered into an agreement with defendant— “to look after the building operations of fifteen (15) buildings which were to be constructed and were con structed on lots hereinafter described.upon the following terms and conditions: “(a) Said plaintiff was to receive a sum of one hundred ($100.00) dollars per week, as a drawing account commencing on September 13th, A. D. 1923, and continuing each week thereafter until the buildings were completed, and was to receive in addition thereto twenty-five (25%) per cent, of the profits, which profits and drawing account should not, in any event, be less than ten thousand ($10,000.00) dollars per year, or on a basis of ten thousand ($10,000.00) dollars per year, and said defendant was to pay said plaintiff his share of profits upon completion and sale of each of said buildings.” He further alleges that he commenced work for defendant on September 6, 1923, and continued to March 4, 1924, when the buildings were finished and his work ended; that the various lots with the buildings constructed under his management were sold by defendant, but although he called upon defendant “at least a dozen times and asked for an accounting and for his division of the proceeds” defendant refused him, ignoring his “rights and demands in said matter,” to secure which he filed this bill. Upon the trial it was shown without dispute that defendant Menzies Real Homes Company was a corporation which had been engaged in the real estate business in Detroit for a number of years, buying, selling, leasing, and at times building upon its property, for lease or sale. At the time of the transaction involved here it owned and was managing a valuable quantity of unimproved and improved real estate in various parts of Detroit. It had some stores on Livernois avenue, a garage property on Cass avenue rented to the General Motors Company for $18,000 a year, one piece of its property on Cass avenue alone being appraised at between $300,000 and $400,000. H. D. Menzies is defendant’s president and Leslie J. Menzies its secretary. They own most of its stock and manage its business. It was their claim that the corporation had ceased its building activities as such about 1921, and since then had confined itself to collecting its rents, reinvestments, and management of its property, although they two had at times since then, as individuals or under separate companies, engaged in some building projects, and the contract or joint venture involved here, was entirely with them personally, of which plaintiff was fully advised from the beginning. Following the hearing the trial court found that the contract on which plaintiff’s bill was based was with H. D. Menzies and Leslie J. Menzies personally and not with the defendant corporation which he had sued, and entered a decree dismissing his bill, with costs to defendant, but prior to the decree an opinion was filed discussing the salient issues raised at the hearing, in which the court not only held there were no contractual relations between plaintiff and defendant but found the contract or joint adventure between him and the Menzies was financed by H. D. Menzies with the credit or assistance of defendant, to protect which, title to the lots upon which the buildings were erected was held in defendant’s name— “by virtue of a trust relation for the benefit of the plaintiff and the other two individuals involved. And it was the understanding of these three individuals that when necessary to convey titles to the lots acquired, they would be conveyed by its officers, the two Messrs. Menzies, to any appropriate grantee, or vendee, at the actual cost price to the defendant corporation of the lots.” The court also found the contract different in certain material particulars from plaintiff’s- contention; that some of the houses and lots had not yet been sold and contracts with small payments down under which others had been sold were doubtful assets for their determining profits; and held in substance that in any aspect of the transaction plaintiff’s demand for an accounting was premature. The controlling and final question in the case as decided by the trial court was whether the contract, whatever its terms or significance, was between plaintiff and the defendant corporation. On that question, the burden of proof was on plaintiff. If the court rightly held that he failed to sustain it by a preponderance of evidence and no contract relations were shown between the parties to the suit, that ended the case. What further was said in the court’s opinion is upon points not necessarily involved in the determination of the cause and but obiter dictum, which calls for no review of the arguments of counsel in relation to it. The contract was concededly oral and the only parties present at its making were plaintiff and the two Menzies. Plaintiff testified it was with the corporation through them acting as its officers. This they specifically denied, claiming it was distinctly with them personally and plaintiff was fully informed of the fact at that time. Assuming all three equally creditable, upon that direct contradiction he failed to sustain the burden of proof; but a comparison of his testimony and theirs as to disputed and undisputed facts makes their story more convincing and persuasive. The undisputed testimony shows that prior to this time the two Menzies had personally made a similar contract of partnership or joint adventure with an architect named Harry C. Vicary. He proved to be an office man without the experience and capacity to profitably and efficiently handle the actual work of construction and their agreement with him, which was in writing, was ended by an amicable adjustment before the number of houses intended had been built. This contract, which was produced in evidence at the hearing, is brief and graphic, made directly between H. D. Menzies and Leslie J. Menzies, and Harry C. Vicary “for the purpose of building and selling houses.” By it H. D. Menzies was to furnish the necessary capital and “devote some time to the enterprise,” while Vicary and Leslie 3. Menzies were to devote their entire time and energy to the project. Each party was to draw $300 per month as salary to be charged directly as overhead to the cost of the houses with other expenses such as office rent, heat, light, stationery, clerical help, discount of contracts, etc. The ultimate profits, if any, after all expenses had been taken into consideration, were to be divided as follows: “H. D. Menzies, 50 per cent.; L. J. Menzies, 25 per cent.; H. C. Vicary, 25 per cent.” Plaintiff was known as a practical builder with years of experience and about that time had no building projects on hand. The Menzies communicated with him and made arrangements for him to take, charge of and continue the work. Their testimony is that when negotiations were opened with him they fully explained the situation and showed him the written contract with Vicary, proposing that he take charge of and manage the work under a similar agreement. Plaintiff squarely denies their having shown or told him of this contract, although he admits he learned of Vicary doing work of that kind before him and that in performing his contract he constructed buildings on basements already dug or partly dug by some one but he did not know by whom. It is conceded that in their negotiations he declined to enter into the project on the monthly drawing account of $300 which they proposed but insisted on more, and they finally agreed upon $400 a month. He also adds to the contract as stated by him in his bill of complaint that it was agreed the land contracts should be discounted at a flat rate of 15 per cent. This, according to the testimony, is made highly improbable by proof of the difficulty of discounting contracts sold on small pay ments down and long time deferred payments; as is also his claim of a guaranty to him of $10,000 a year in a venture of this kind in which he only invested his services, for which he was sure of $100 per week whether the venture proved profitable or entailed a loss to his co-adventurers, and which the Menzies say they first heard of when his bill was filed. Their testimony is also in direct conflict as to what was said with regard to the contract being in writing. Plaintiff was asked and answered: “Q. Was that agreement to be in writing? “A. Yes, sir. “Q. And to be written by whom, and who were to be the parties to it? “A. The Menzies Real Homes Company and the parties were to be H. D. Menzies, Leslie Menzies and Jay H. Murray. “Q. Thereafter did you ask them for a written agreement, to be put in writing? “A. Yes, sir.” This is also flatly denied by the Menzies. H. D. Menzies testified that in a subsequent talk about it he proposed to give plaintiff a letter on the subject “so we will understand just where we stand,” and he replied it was not necessary, “we understand one another.” Plaintiff was a building contractor, had himself engaged in building houses to sell, was experienced in the cost and uncertainties of such enterprises, said he knew what he was getting into, and “was not a babe in the woods.” He claimed total ignorance of matters in connection with this transaction which taxes credulity. His testimony was self-contradictory and reckless in parts. We find no occasion to disturb the conclusion reached by the court below that plaintiff failed to show by a preponderance of convincing evidence that the contract he relied on was between him and the named defendant in this case. Without prejudice to other or different proceedings in relation to the transaction shown, the decree dismissing plaintiff’s bill will stand affirmed, with costs to defendant. Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Justice Moore took no part in this decision.

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Snow, J. Plaintiffs are building contractors in Detroit and contracted with the board of education to build an addition to the Noble school for the sum of $349,870. They sublet the heating and plumbing to Irvine & Meier, Incorporated, for $80,226. This concern failed before it had completed the work and went into bankruptcy, and plaintiffs were compelled to finish it. Plaintiffs had paid them when they quit the job all but $14,665.97 of the contract price, and, after plaintiffs had finished the work, they claim they still had in their possession approximately $10,000 of this amount, which they now hold. Irvine & Meier, Incorporated, when it abandoned the job, owed to some 30 different concerns about $23,000 for labor and materials furnished it in its work on the building, and several of them commenced suits against plaintiffs and the Southern Surety Company, surety on their bond, to recover therefor. The plaintiffs then filed in the circuit court in chancery for the county of Wayne a bill of interpleader, alleging in substance that they had in their possession belonging to the Irvine & Meier concern about $10,000, which was claimed by the various creditors and the trustee in bankruptcy of the Irvine & Meier estate, and that they were threatened with various suits and were being vexed and harassed, and did not know to whom the fund belonged. They prayed for the right to pay the amount they owed Irvine & Meier into court, and to be released and discharged from all liability to any of the said defendants. The defendant A. Harvey’s Sons Manufacturing Company moved to dismiss plaintiffs’ bill of complaint, and from an order granting such motion the plaintiffs appeal. The only question for consideration is as to whether or not, under the facts and circumstances narrated, plaintiffs are entitled to file a bill of interpleader, or one in the nature of such a bill, and secure a discharge from all actions the creditors of Irvine & Meier might institute. Plaintiffs allege in their bill of complaint that Irviné & Meier, Incorporated, listed in its schedules in the bankruptcy proceeding the sum of $13,712.62 as the amount due from plaintiffs, which amount, or so much thereof as may be actually due, the trustee therein claims. They allege also that the claims made against Irvine & Meier aggregate approximately $23,000, and that they owe them approximately $10,000. This amount is arrived at by plaintiffs after subtracting from the contract price the amount paid to Irvine & Meier plus the amount it cost them to finish the job. But it is the claim of defendants that more was paid on the contract than the statute permits, and that the amount in the hands of plaintiffs is uncertain and must be determined. “The amount due from a plaintiff cannot be the subject of controversy in an action of interpleader; the action can only be maintained when plaintiff admits liability, for the full amount claimed, to one or the other of the claimants.” Baltimore & Ohio R. Co. v. Arthur, 90 N. Y. 234. See Maxim v. Shotwell, 209 Mich, at p. 84, and cases there cited. This uncertainty of the exact sum in the hands of the plaintiffs and the necessity for its determination are in themselves fatal to the right to maintain a bill of interpleader. But other facts stand in the way of plaintiffs’ right to an interpleader. They were contractors to build a public building, and by virtue of the statute provided in such case (3 Comp. Laws 1915, §§ 14827-14830), executed a bond with the Southern Surety Company as surety. As stated, several actions by the various defendants have been commenced against plaintiffs and the surety company, claiming right to recover against them by virtue of the statute referred to. Right to recover may exist in some of these actions and not in others. Such rights cannot be litigated in an interpleader suit, especially as the surety company, against which liability is claimed, is not even made a party in such suit; nor can the aid of the court be invoked by injunction restraining these claimants from recovering the full amount of their claims against the surety company if liability exists. The bill cannot be maintained as one in the nature of a bill of interpleader, as the plaintiffs seek no relief of an equitable nature in addition to the interpleader of conflicting claimants. See Maxim v. Shotwell, 209 Mich, at p. 85. Being impressed, from plaintiffs’ bill, with the correctness of appellees’ contention that plaintiffs are not disinterested stakeholders of a sum certain in amount, and that the surety company ought not and cannot be absolved from its liability on the bond (if such in fact exists) by an action of this sort which deprives defendants of their rights to proceed against it, we must hold the bill to have been improperly filed and the action without merit. The order of the trial court in dismissing the same is affirmed, with costs to appellees. Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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McDonald, J. This is an action to recover damages arising from breach of contract for the co-operative marketing of potatoes. The plaintiff had judg-' ment and the defendant has brought error. The case was tried on a stipulated statement of facts from which it appears that the plaintiff is a nonprofit co-operative association, organized under chapter 4, part 2, of Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [78] et seq.), for the purpose of grading and preparing potatoes for shipment and sale; for advertising, marketing, selling, and shipping; and for fostering and encouraging the interest of farmers in the development of co-operative activities in agriculture. It is a member of the Michigan Potato Growers Exchange, also a nonprofit corporation having a membership of about 75 local associations. When it was desired to organize the plaintiff association, the promoters, in company with solicitors from the Michigan Potato Growers Exchange, called upon the potato growers in the market area of the village of Hart, and secured preliminary contracts with an association to be formed, the contracts not to become operative until similar contracts were secured from the growers of 50 per cent, of the commercial potato acreage within the market area. The defendant signed one of these contracts on the 20th of June, 1925. Before July 10, 1925, similar contracts had been secured from other growers covering more than 50 per cent, of the commercial acreage of all potatoes grown within the market area. The defendant was then notified, in writing, that his contract had become operative and binding. On June 23, 1925, a preliminary organization meeting was held at which the name of the plaintiff associa tion was adopted. Articles of association were signed September 17, 1925, but were not filed with the secretary of State until October 12, 1925, and with the county clerk on October 15, 1925. The contracts gave the plaintiff the exclusive right to handle and market all potatoes grown by its members within the Hart market area, and provided for the payment of damages by the growers if they failed to1 comply in that particular. It is conceded that the defendant violated this provision of the contract in the month of November, 1925, by selling potatoes to persons other than the plaintiff association. To recover damages for this breach the plaintiff brought its action. The sole question involved is as to the validity of the contract. It is first contended by counsel for the defendant that when the contract was made the plaintiff had no legal existence, that it was not authorized to transact any corporate business, had not complied with the law by paying the franchise fee which such a corporation must pay, and that, therefore, the contract was wholly void under section 11352, 3 Comp. Laws 1915, which declares that “all contracts made in this State after the first day of January, 1894, by any corporation which has not first complied with the provisions of this act shall be wholly void.” We think that section of the statute has no* application to this contract. The plaintiff company was organized under Act No. 84, Pub. Acts 1921. Part 1, chap. 2, § 2 (Comp. Laws Supp. 1922, § 9053 [12.]), provides for the filing of the articles of association, payment of franchise and certificate fees, and the issuance by the secretary of State of his written authority to the corporation to commence business. Immediately following this is the proviso: “Provided, however, That no contract made by the incorporators preliminary to the filing of such articles shall be deemed to be invalid or ineffectual because made prior to such filing, and all property held by such incorporators for the benefit of the proposed corporation shall be deemed to be property of such corporation for the purpose of complying with section one of this chapter.” This provision of the statute settles the question adversely to the defendant’s contention. It is further argued by counsel for the defendant that the contract is not binding or enforceable because it is unilateral; that it is a one-party contract, wanting in mutuality, signed in the first instance by the defendant alone and later by the plaintiff at a time when it had no corporate existence. Their position on this question is stated in their brief as follows: “It is admitted that at the time Ed. Greiner signed this so-called contract, that the name of the first party had not yet been determined. It stood as a contract between Ed. Greiner and an unnamed first party. That later a meeting was held at which Ed. Greiner was not present and it was then determined that the name of the first party to said contract should be ‘Hart Potato Growers Association.’ And later, and not until the 12th day of October, was there such a corporation as the plaintiff. Thus from June 20th to October 12th, 1925, there was only one party to this so-called contract. Certainly until October 12th, 1925, this was a one-party contract with no one.” It is true that the so-called contract did not become binding and operative when the defendant signed it. It was not intended that it should. In fact, it was not a contract at all, but merely an open and continuing offer which ripened into a contract when the conditions were met by those who were promoting the plaintiff company. These conditions were that they should organize a co-operative marketing association and secure similar contracts from other growers representing 50 per cent, of the commercial acreage in the Hart area. They accomplished both of these things, but before the organization was legally perfected the incorporators signed the name of the proposed corporation to the contract. The statute, pt. 1, chap. 2, § 2, Act No. 84, Pub. Acts 1921, declares such preliminary organization contracts by incor-porators to be legal. But, regardless of this statute, they become contracts enforceable by and against the corporation when the board of directors by resolution “approved, ratified, and adopted” them. On his part the defendant recognized and treated the contract as valid by delivering potatoes to the plaintiff after he had been notified of its acceptance. Our conclusion is that it is valid and binding. The defendant made an offer in writing to enter into a contract with a corporation to be formed, and he kept the offer open until it was accepted by the incor-porators. We think, in view of the language of the statute, it then became effective. But, if not then, it became effective beyond question when accepted and adopted by the corporation after it became legally entitled to commence its corporate business. 17 A. L. R. p. 462; 14 C. J. p. 257; 7 R. C. L. p. 81. The judgment of the circuit court is affirmed, with costs to the plaintiff. Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.

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McDonald, J. The defendants are traveling evangelists. They were convicted of resisting the execution of an ordinance and the order of the mayor of Alma, Michigan. The people’s testimony tends to show that the defendants began holding religious meetings on July 13, 1925, in Wright Park, a city park in Alma, Michigan. The park adjoins the Michigan Old People’s Masonic Home and Hospital. No formal permission was given by the city, but the meetings continued without objection until complaints came in of excessive noise and misuse of the park. The city commission- then decided to deny the use of the park to the defendants after Saturday, July 18, 1925, and left the matter to the mayor, the city manager, and the chief of police, who caused the defendants to be notified that the meetings must be discontinued after Saturday night. Notwithstanding this notice, the defendants announced that meetings would be held as usual. The defendant King spoke in defiance of the city authorities, told the people that they were not living in Rome, that the park belonged to them, and the mayor had no right to deny to them the use of it. By order of the mayor, the park was closed on Sunday, July 19, 1925. The gates were roped off and the chief of police, with several regular policemen and special officers, were stationed at the park to prevent its use by the defendants. Before the time announced for the meeting, the mayor went to the park and talked to the defendants. He told them that they could not use the park. Defendant King insisted that the mayor was wrong, and said that, notwithstanding his order, they would hold their meetings. Two of the defendants sought places of entrance not guarded by the police, and entered the park. They were ejected. They then addressed the people who had congregated in large numbers on the outside, and advised them to break down the fence and go into the park. The crowd followed this advice, and broke over into the park in spite of the efforts of the officers to restrain them. The meeting was held according to schedule. This prosecution followed. The defendants denied many of the claims of the people though there is little dispute as to the material facts. They were convicted and have brought the case to this court on exceptions before sentence. The errors assigned relate to the admission of evidence, to' the refusal to give certain requests, and to the charge as given. The prosecution was brought under section 14994, 3 Comp. Laws 1915, which provides: “If any person shall knowingly and wilfully obstruct, resist, or oppose any sheriff, coroner, township treasurer, constable, or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or shall resist any officer in the execution of any ordinance, by-law, or any rule, order or resolution made, issued or passed by the common council of any city, board of trustees or common council or village council of any incorporated village or township board of any township, or shall assault, beat or wound any sheriff, coroner, township treasurer, constable, or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served or attempted to serve or execute the same, or shall so obstruct, ’ resist, oppose,- assault, beat, or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve, and keep the peace, every person so offending shall, on conviction thereof, be punished.” * * * The first question discussed in defendants’ brief is presented by ten requests to charge, and in substance is, that the court should have held, as a matter of law, that there was no question for the jury, and should have directed a verdict of not guilty. In other words, it is the defendants’ claim that there was no offense committed under the statute; that the order of the mayor was not such an order as is contemplated by the statute; that the officers were not engaged in the execution of an ordinance; and that, considering the testimony most favorable to the people’s case, the defendants were guilty of nothing more than a violation of an ordinance. The ordinance in question is known as ordinance No. 67, and is entitled: “An ordinance to regulate the use of the public parks of the city of Alma, Michigan.” The applicable part reads as follows: “No person shall deliver any oration, address, speech, sermon, or lecture therein unless he shall have first received permission from the common council of the city of Alma, or the mayor or other lawful authority so to do; nor shall any public meeting be held therein unless leave is first obtained.” The statute under which this prosecution is brought makes it an offense for any person to “resist any officer in the execution of an ordinance,” etc. Counsel for the defendants insist that, at the time when the offense is alleged to have been committed, the officers were not engaged in the execution of an ordinance. They base this contention on a distinction which they seek to draw between the execution of an ordinance and an effort to prevent its breach. To execute an ordinance, within the meaning of the statute, is to carry it into effect, to enforce its commands. The purpose of this ordinance is to regulate the use of public parks. One of the regulations is that such a park shall not be used for public meetings without permission. In issuing a permit or preventing the use of the park when a permit has been refused, the officers are carrying into effect the purpose of the ordinance. They are executing it. The contention of counsel is wholly without merit. At the time of the alleged offense the officers were engaged in the execution of an ordinance. Equally without merit is the claim that the only order contemplated by the statute is a court order. The statute expressly states an “order made or issued by lawful authority.” The ordinance authorizes the mayor to issue permits for the use of the park. It was his duty to enforce the ordinance. He could only do so by direction to the chief of police; and when he ordered the chief to prevent the defendants from using the park on the day in question, it was an “order issued by lawful authority.” The court correctly overruled the defendants’ contention that if there had been any offense committed, it was merely a violation of the ordinance and not of the statute. The objections to the refusal of the court to submit certain requests to the jury and to the charge as given may be answered by saying that if there were any errors committed in respect to those matters, they were without prejudice to the defendants, because, under the undisputed evidence and the law applicable thereto, the court might properly have directed a verdict of guilty. In determining what constitutes resistance to the execution of the ordinance, the conduct of the defendants must be viewed in connection with the attending conditions and circumstances. The officers had to deal not only with the defendants but with a more or less excited crowd of several hundred people, most of whom were in sympathy with the defendants, and in respect to the holding of the meeting were under their absolute control. It was the crowd incited by the defendants that finally overcame the efforts of the officers to prevent the meeting. King and one of the other defendants were ejected from the park by two of the officers. King claimed that in doing so the officer tore his coat. He got up on a barrel near the fence and addressed the crowd for 15 or 20 minutes. He showed his torn coat. He attacked the mayor, and said that the people had a right to use the park, that it was a public place. He said that the mayor was not doing his duty, that he had a notion to appoint himself mayor and let the people into the park, and that if the mayor did not come and open it he, King, had a right to do so. The defendant George Garner testified: “When King announced he would make himself mayor — declare himself mayor — words to that effect, it was a little loud; he stated the mayor had overstepped the mark, and he said, T have a notion to appoint myself as mayor and order the people to go in the park, go right in the park and we will hold the meeting.’ ” Other witnesses for the defendants testified as follows: “I saw King shortly after that standing up on something raised, talking to the people; the first thing I heard Mr. King say, he held up his right arm, and he had his coat sleeve nearly torn off. It was held a little at the top, and he was talking about the injustice of the officers. * * * I have never heard anyone that could stir up a crowd with regard to religion like King; he is the best talker I ever heard. He enthused me with his talk. I believed what he said and that was my spirit of mind when I went to the park on Sunday. I believed when I went to the park that I had a perfect right in the park on Sunday. Mr. King stood on a barrel and talked to the crowd fifteen or twenty minutes, and he told the people that it was a public place and they had a right to enter and they did enter the park. * * * I heard most of the talk King gave for fifteen minutes in front of the park; I might have heard all but I didn’t pay attention to all. * * * “Q. You heard him say it was a public park, and he kept motioning to the crowd to go on in, and the crowd went on in when he motioned to them? “A. Some of them did. There was a crowd in the park before King got through talking; about half the crowd, two hundred, was on the outside and that crowd went through after he got through talking.” Defendant George Garner also testified that he and the other defendants went to the park with a “fixed determination” to hold the meeting notwithstanding any opposition from the officers. He said: “When we were evicted from the park we told them that we were going to have that meeting. The officers, including Campbell (the chief), were in uniform and he told us he was a police officer. I have had quite an experience with police officers and at that time I intended to hold that meeting after he told us not to. * * * We held the meeting. We intended to do first what we did, but not with any violence.” It is not necessary to make further reference to testimony given in behalf of the defendants. That which we have referred to shows that, knowing they had been forbidden to use the park, the defendants went there with a fixed determination to hold the meeting. They found the park closed. Two of them gained entrance, but were ejected by the police. They were warned by the police officers to keep out. Instead of yielding to the law they persuaded their followers, who were present in large numbers, to enter and take possession of the park. What they did is undisputed, but their contention seems to be that they are not guilty of resisting the execution of the ordinance, because they did not resort to physical violence. To constitute an offense under this statute, it was not necessary that they should kick and fight and bite their way into the park. Their conduct under the circumstances was just as effective in resisting the officers as though they had used physical force. If all of the testimony except that given by the defendants and their witnesses had been eliminated from the record, the jury would have been justified in finding them guilty. In view of this fact, we shall not spend any time in discussing technical objections to the proceedings of the trial. In the verdict of guilty there was no miscarriage of justice. The judgment of conviction is affirmed. The court will proceed to sentence. Bird, c. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.

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Sharpe, J. On May 9, 1922, John E. Young, Jr., and Ruie J. Young, his wife, deeded a lot which they owned in Detroit to the defendant Leach, and at the same time Leach entered into a contract to sell the lot to them for the sum of $15,750, of which sum $4,000 was acknowledged to be paid. Leach also executed a contract wherein he agreed to build on the lot a two-family flat, costing $11,750. On the day Leach received this deed, he conveyed the lot to the defendant Davie, who assumed the vendor’s obligation under the land contract and also Leach’s obligation under the building contract. On July 29, 1922, Davie mortgaged the premises to the defendant Society for Savings for $7,000. On August 7, 1922, he executed a second mortgage on the premises to the defendants Niles and Peters for $3,000. On June 14, 1922, he executed a quitclaim deed of the premises to the defendant Jackson. In it appeared: “This conveyance is made for security only, to-wit: The payment of the account of Davie & Schrot, to B. H. Jackson.” It was recorded as a mortgage on August 18, 1922. The plaintiff and the other defendants furnished materials which were used in the building, and on April 11, 1923, the plaintiff began this suit to foreclose his lien and all of the defendants were made parties thereto. The court adjusted the lien and mortgage claims in a manner of which no complaint is made except that of defendant Jackson, which was disallowed. He appeals from the decree entered. The ledger sheets of Jackson’s account with Davie appeared in the record. At the time the deed was given (June 14, 1922) Davie was indebted to Jackson in a sum in excess of $5,000. Much material was furnished thereafter and many payments made on the account. The balance due on February 7, 1923, was $3,852.31. For this amount Jackson claims a lien under his deed. We are impressed that he is entitled thereto unless it be found that the debt secured by the deed was extinguished by the payments thereafter made. These payments exceeded the amount of this indebtedness. Jackson made no change in the manner in which the account with Davie was kept after the deed was given. It ran as an open account with debits and credits until February 7, 1923. Davie gave no direction as to how the credits should be applied. Neither did Jackson apply them to any particular items of the indebtedness. Statements were presented to Davie from time to time showing the dates when the credits were given. No claim of right to apply such payment on the unsecured indebtedness was made until the trial of the cause. The lav/ relating to the application of payments is well settled in this State. The debtor may direct the application before or at the time the payment is made. If he does not, the creditor may apply it as he pleases, either at the time the payment is made or afterwards, if before any controversy arises concerning it. In the absence of direction on the part of the debtor or application by the creditor, if the credit merely appears in the general account and there be no evidence of an understanding to the contrary, the credit will be applied to the debits in the order of time in which the debits occur. In People, for use of C. H. Little Co., v. Grant, 139 Mich. 26, 28, it was said: “There remains the question as to the effect of entering the credit for payments in a general account and rendering a statement to the-debtor showing such application. It seems that the mere entry of a credit to a particular account is not a conclusive application of the payment in the absence of notice to the debtor. Simson v. Ingham, 2 Barn. & C. 65. But when such credit is made, and an account rendered to the debtor showing such application, it is too late to make a new election. So it is held in numerous cases that, where a credit is entered to a general account, and an account thereof rendered to the debtor, this is an election to apply the payment to the extinguishment of items antecedently due in the order of time in which they stand in the account.” In that case and in Grosser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (67 Am. St. Rep. 389), and in R. L. Polk Printing Co. v. Smedley, 155 Mich. 249 (in which the same rule was applied), secured claims were involved. In Van Sceiver v. King, 176 Mich. 605, 608, it was said: “No application of the payment having been made by the defendant, and none established by the complainant, the court will apply it as justice and equity may require.” But in that case it appeared from the receipt given for the payment that the creditor might apply it in either of two ways as he might elect. The entry of the credits in the general account and the rendition of statements containing them, we think, must be treated as an application to the debits in the order of time in which the debits occur. It follows that the indebtedness to Jackson which the deed was given to secure was paid at the time his claim was presented to the court. The decree is affirmed, with costs to appellee. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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Sharpe, J. In 1908, William H. Sanborn, William T. Hoey and Frederick H. Reibenack were the owners of a considerable tract of land in Alpena and adjoining counties and conducted lumbering operations thereon. The title to the lands was in Sanborn. At the same time the defendant Gustin owned a still larger tract in the' same counties. Under agreement between the parties, Gustin transferred his lands to Sanborn as trustee. The lands were to be lumbered and sold on joint account and the net proceeds divided. Soon after this agreement was entered into, the plaintiff corporation was organized, the three parties above named holding equal shares of stock therein, and the title to all the lands, including those conveyed by Gustin, lodged in it. Lumbering was conducted and sales made by the plaintiff until 1911, when Beibenack bought the stock of Sanborn and Hoey and transferred a share to two other persons in order that the corporation might continue to function. Operations were continued until 1913, when the defendant Gustin, after expressing some dissatisfaction concerning the result of the operations, offered to sell his lands to plaintiff for $16,000 or purchase plaintiff’s at the same price. Gustin’s offer to purchase was accepted. It was arranged that as Gustin disposed of any lands or timber the proceeds should be credited on the $16,000. In December, 1918, approximately 9,600 acres were deeded to Gustin. In 1920, Gustin claimed that he had not only paid this amount in full but had overpaid it, whereupon plaintiff filed its bill of complaint herein for an accounting as to the amount due. Gustin answered, consenting to the accounting, and by cross-bill averred that moneys were due him thereon, and prayed for delivery of a deed of the lands- and for decree for payment of the amount found to be due him. In January, 1922, after the cause was at issue, the defendant Besser secured from the plaintiff a warranty deed of said lands for an expressed consideration of $20,000, and placed the same on record. Gustin thereupon by permission of the court filed an amended answer and cross-bill, in which Besser was made a party defendant and required by an order of the court to answer. In it he prayed that Besser’s deed be canceled as a cloud on his title. Besser answered, and by cross-bill asked that the title be quieted in him. He also averred that Gustin had conveyed some of said lands to the Beaver Lake Club, a corporation, and asked that it be made a party defendant and its deed canceled. The club was made a party defendant and answered, denying that Besser was entitled to any relief as to it. The trial court, by decree filed on August 18, 1924, ordered plaintiff to convey the lands to Gustin and granted a decree in his favor against plaintiff for an overpayment in the sum of $3,592.96. He canceled the Besser deed, but ordered Gustin to pay Besser $50, which he had paid to remove an apparent cloud', upon the title to one parcel of said land. The defendant Besser appeals. 1. Besser’s Title. It is insisted that Mr. Besser was a good-faith purchaser, without notice, actual or constructive, of the equitable claim of Mr. Gustin. The trial court in his opinion, after reviewing the proofs at some length, said: “I am of the opinion that Mr. Besser, when he obtained his deed in January, 1922, had such notice and knowledge of the claims of Mr. Gustin, and his grantee and lessee, the Beaver Lake Club, as would apprise an ordinarily prudent and honest man that he ought to inquire further before purchasing the lands involved, as to the extent, nature and foundation of such claim. * * * “He bought the lands in great haste for an inadequate consideration, and, in my judgment, was not a bona fide purchaser of the same.” A careful consideration of the entire record satisfies us that he reached the right conclusion. Mr. Besser had long been a resident of Alpena county. He had for many years dealt extensively in timber and timber lands in that and the adjoining counties, and was able to estimate the quantity of timber on land and to fix its value and that of the land on which it was standing. He visited the lands in question, known as the Beaver Creek lands, with a view to their purchase in the year 1912 and again in 1917 and 1920. He testified, relative to his purchase, that he casually met Reibenack in a store in Alpena and asked him if his land in 29-5 was still for sale, and, on being informed that it was, asked the best price he would take for it; that Reibenack went to the back part of the store and returned, handing him a paper on which was written “$20,000;” that he said the price was ■too much and that Reibenack “finally got down to a '$6,000 basis and I was to pay the taxes;” that Reibenack furnished him a plat of the lands and he went to the office of an abstractor and requested him ;to look up the title; that a little later the same day he went back and was told that the title was in the plaintiff except as to a few descriptions, the title to which was somewhat doubtful; that he then saw Frederick Polzin about getting the money; that they went to Robert Polzin’s store, where he got $2,000 in currency and a check for $4,000; that Reibenack had the deed prepared and executed by himself as president and Frederick C. Burnett as secretary of plaintiff, and he paid him the $6,000; that when the deed was prepared there was talk about the revenue stamps which should be placed on it, and that Reibenack said there were some taxes and “Oh, well, make it $20,000,” and that the stamps required for that consideration were placed on it and paid for by Reibenack; that he then went to the county treasurer’s office and paid the taxes needed to entitle the deed to record ($1,320.91) and left it for record. All this occurred on the same day. An entry was made on the books of the plaintiff which stated that the purchase price was $20,000. The deed from Gustin to the Beaver Lake Club of a part of these lands was then on record. Reibenack left Alpena the next day and had not been heard from at the time of the trial. Mr. Burnett owned one share of stock in the plaintiff company, and acted as its secretary. He had kept its books for many years. He knew of Gustin’s offer to purchase for $16,000 and the company’s acceptance of it. He made out the account, a copy of which was attached to the bill of complaint, and signed and verified the bill filed as secretary and treasurer of the plaintiff. That the execution of the deed to Besser, if intended to cut off the rights of Gustin, was a gross fraud on the part of the officers of the company cannot be doubted. Burnett had no financial interest in the company. It is inconceivable that he would have executed this deed unless satisfied that Besser had full knowledge that the title of the company conveyed to him thereby was subject to the equitable claim of Gustin. Beaver Lake is a fine body of water. Mr. Besser knew that several of the descriptions of the lands in question bordered on it. A dam was built at the outlet in the fall of 1920. Mr. Gustin was at that time one of the county road commissioners of the county, and at a meeting of the board of supervisors in May, 1921, the charge was made that work had been done on the dam by employees of the commissioners. An investigating committee was appointed and a hearing had. In the first column of the first page of the Alpena News published on May 26, 1921, under the headings “Hearing on Beaver Lake dam charge. Road committee of supervisors ends task,” appeared a resumé of the hearing, in which the Beaver Lake dam and Beaver Lake Club were several times referred to. It is but fair to say that the commissioners were exonerated in the report made. This paper also had a column headed “Beaver Lake Items,” in which the activities of the club and the guests en tertained at it in the fall of 1921 appeared almost daily. In 1916 Gustin concluded to make a game preserve of a part of the lands around the lake. He employed a farmer named Allen, who lived on an adjoining section, to build a fence partially around them, and this was done. About seven miles of barbed wire was placed on posts set for that purpose. Much of the small timber was brushed out where the fence was built. Allen testified that he tacked up notices printed on cloth on trees and posts along this fence and that new notices were put up every fall thereafter. A number of other witnesses testified concerning this fence and the notices posted near it. A witness named Goodrich, who was lumbering and looking after the lands for Gustin, testified that in December, 1919, he met Besser on the lands, talked with him about his lumbering for Gustin, and told him that Gustin was organizing a club and was going to build a clubhouse. He helped build the clubhouse, about 35 men being employed. A telephone line was constructed in 1921 connecting it with the Turtle Lake Club. He' also testified that the lands were known and spoken of as the Gustin lands after 1918. Mr. Gustin testified that in September, 1921, he had a talk with Mr. Besser in which he told him that he had recently organized the Beaver Lake Club and that they were then building the clubhouse at the lake. These conversations are, however, denied. It also appears that there was repeated mention in the Alpena News of the activities of Gustin and the Beaver Lake Club, and a notice was at one time published in it by Gustin forbidding trespasses on these lands. Besser was a subscriber to this paper. Alpena is not a large city, and it seems incredible that a man engaged as was Mr. Besser did not read what was so published and had no knowledge of these activities or of the organization of this club or its holdings when there was so much publicity concerning them. In September, 1921, Gustin deeded a part of the lake frontage to the Beaver Lake Club and leased it a considerable acreage for hunting purposes for a term of 20 years. He had theretofore entertained friends at hunting parties on the land. The club, before getting its deed, had begun the erection of a clubhouse and completed it in the fall of 1921 at a cost of about $25,000. It stood on an elevation near the lake, and could be seen for miles around. There is considerable proof that the merchantable timber standing on these lands was worth more than $40,000 at the time of the hearing, and a part of it is good farming land worth at least $10 per acre. When to this is added the value of the clubhouse ($25,000), it will be seen how inadequate was the price paid by Mr. Besser as the consideration for his deed. In 1918 and 1919 Gustin conducted quite extensive lumbering operations on the lands, some of the lumber remaining in piles for more than a year. Robert H. Rayburn, long a resident of Alpena county and an owner of lands adjoining those in dispute, called as a witness by Besser, testified “It was generally known up there in that region that Gustin had a club and had men up there from Chicago and other places.” He at one time leased to Gustin the hunting and fishing privileges on a lot adjoining that deeded to the club. He further testified: “Gustin claimed to own those lands but the title showed in the American Cedar & Lumber Company.” It is elementary that as a general rule possession of real estate is constructive notice of title in the possessor. “Constructive notice by possession is equal to con structive notice by record.” Fraser v. Fleming, 190 Mich. 238, 244. Notice in such cases is a legal deduction from the fact of possession. Delosh v. Delosh, 171 Mich. 175. The possession of wild, uncultivated land may not be evidenced in the same way as improved land. There must be such a use or occupancy as would indicate to a reasonably prudent person visiting the land that the occupant or possessor claimed rights therein. “Possession may be shown by any use of the land to which it is adapted, and which is calculated to apprise the world that the property is occupied. Tate v. Pensacola, etc., Development Co., 37 Fla. 439 (20 South. 542, 53 Am. St. Rep. 251).” 39 Cyc. p. 1750, note. It is urged that Gustin had no right of possession and, if he took possession, was in fact a trespasser. It is apparent that the agreement entered into between the plaintiff and Gustin, on which the bill in this case for an accounting was predicated, contemplated that Gustin should have possession and might sell or lumber the lands, the proceeds, however, to be applied on his indebtedness to the plaintiff. It admits in its bill that the relation then existing between them was that of a vendor and vendee under a land contract, and it asked the court for a decree that it be authorized to sell so much of said lands as might be necessary to satisfy the amount found to be due it on such accounting. In the light of these facts, the plaintiff could not well claim that Gustin’s possession was that of a trespasser. We are impressed that Besser knew that Gustin had some rights in these lands, but was of the opinion, as was apparently Mr. Rayburn, that as there was nothing of record to show it the plaintiff might convey the title freed therefrom. “A person is chargeable with constructive notice where, having the means of knowledge, he does not use them: Mayor, etc., v. Williams, 6 Md. 235. If he has knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries, and does not make, but on the contrary studiously avoids making such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would readily have ascertained.” Converse v. Blumrich, 14 Mich. 108, 120 (90 Am. Dec. 230). 2. The Accounting. As Besser by his deed secured all the rights of the plaintiff in the lands described in his deed, he is entitled by his appeal to a consideration of the conclusion reached by the trial court on the accounting. Should any money be due from Gustin to the plaintiff, Besser would be entitled to it by virtue of the deed from plaintiff to him, which is valid as to the parties thereto. The two items in dispute are, first, the allowance Gustin should receive on account of cedar cut on a part of the lands included in his purchase, and the matter of interest. As to the former, it appears that one Brilinski cut this cedar under an arrangement with the plaintiff whereby it received therefor $5,132.65 after the payment of all expense.- Gustin testified that Reibenack told him the company had sold the cedar to Brilinski for $1,000, and that it was years after before he discovered that it had received the sum above stated. We have read the testimony bearing on this item with care, and are satisfied that the plaintiff should account to Gustin for the stumpage value received by it. There is much force in the claim that Gustin should be charged with interest on the sums unpaid from time to time. The letter containing his offer and its acceptance by plaintiff say nothing about interest. He testified that it was agreed that none should be charged. The interest charges as they appear on plaintiff’s books amount to $2,159.58. If this be charged to Gustin, it will in no way affect Mr. Besser as there would still be a balance due Gustin from the plaintiff. As Besser, who alone appeals, is not personally interested in the decree so far as it provides •for payment by plaintiff to Gustin, and as Reibenack did not appear to defend the interests of his company, we are not disposed to interfere with the conclusion reached by the trial court that the interest charges should be disallowed. 3. Taxes Paid by Besser. It is undisputed that after his purchase Besser paid the taxes delinquent on the lands, amounting to $1,320.91. The trial court held that this sum should be treated as a payment by the plaintiff and that it should have the right to deduct it from the sum due by it to Gustin on the accounting. Besser’s counsel insist that he was entitled to a personal decree against Gustin for this amount. In this we think they are right. There was no obligation on the part of plaintiff to pay these taxes. They had become a'lien on the lands after the agreement was entered into under which Gustin took them over from plaintiff. ■ They were for Gustin to pay, and he, having brought Besser into a court of equity, should be required to do equity and repay to Besser the amount so paid which has inured to his benefit. 4. The Spratt-Herrick Lot. After Besser’s purchase he procured abstracts of title to the lands described in his deed. He discovered that the record title to lot 3 of section 11, town 29 north, range 5 east, was defective. He had in the meantime visited the clubhouse and found that it was located on this lot. Thomas G. Spratt, late of. Alpena, obtained a warranty deed of this lot in 1888. He at that time was engaged with Nicholas J. Foley in buying and lumbering timber lands under the firm name of Spratt & Foley. Foley testified that the title to these lands was usually taken in Spratt’s name. Spratt died in 1895. His will was admitted to probate in Alpena county. His property was bequeathed in equal shares to his wife, Ruth M. Spratt, and his daughter Bernice, now Bernice Spratt Herrick. Mrs. Spratt was named as sole executrix. On December 27, 1888, a deed of this lot, purporting to be made by Foley and his wife and Ruth M. Spratt to John Gibson, was recorded in the office of the register of deeds of Alpena county. It recites that the lands were “Spratt and Foley lands.” The record does not show that it was signed by Mrs. Spratt, although the certificate of the notary attests that it was acknowledged by her. While Mr. Foley could not recall the transaction, he testified that the lands belonged to the partnership and that Mrs. Spratt received one-half of the consideration paid therefor. One of the witnesses to the deed- was Louise M. Oakes. She testified that at the time it was executed she was living at the Spratt home and was satisfied that she had witnessed it there. She had had much experience as a stenographer and bookkeeper, and in answer to a question whether she would have signed it as a witness unless Mrs. Spratt had signed it answered: “I certainly would not, with my experience, have signed it unless her name had been there, as a witness, and I didn’t know the other party.” The Gibson title passed by mesne conveyances to the plaintiff and was carried on its books in the “San-born and Gustin Land Account.” On discovering the condition of the record title to this lot, Besser, on February 11, 1922, secured a deed from Bernice Spratt Herrick, paying her $50 therefor. In its bill of complaint the plaintiff alleges that Gus-tin offered and agreed in writing to take over all the lands and; timber owned jointly by them and pay plaintiff $16,000 in full settlement of all accounts between them, and that plaintiff accepted this offer. From the date of such acceptance the relation of vendor and purchaser existed between them. The plaintiff was thereby obligated to convey the lands therein referred to on payment ‘to it of the sum agreed upon. This sum had been fully paid at the time the bill was filed, and Gustin was then in equity entitled to a deed of the lands. Mr. Besser steps in and purchases the lands from the plaintiff. Under our holding he acquired title subject to the equitable rights of Gustin in the land. The plaintiff had color of title to the lot in question. It conveyed it to Besser by warranty deed. Besser thereafter stood in the shoes of plaintiff, and assumed the obligation to perform the contract which plaintiff had entered into with Gustin. The court in its decree set aside the deed from the plaintiff to Besser. While it makes no difference to Gustin from whom he obtains title, yet the deed from plaintiff to Besser is a valid one and conveyed to him all the interest the plaintiff then had in the lands described in it, but subject to Gustin’s rights , under his contract. After executing such deed, the plaintiff had nothing left to convey. In Vos v. Dykema, 26 Mich. 399, 401, it was said: “It is said, however, that the deed is not effectual as a transfer of the contract, because, being with covenants, it is inconsistent with its terms that any such contract was in existence; and it cannot be held that the vendor intended to assign the contract by a deed which, so far from alluding to it, covenants that the title is unincumbered, and thereby in effect declares that there is no such contract. But if the contract existed in fact, it is difficult to perceive how the vendor could possibly assert any rights under it, after giving an absolute conveyance. He assigns all his right in the land; and that assignment is necessarily subject to the right of Dykema to acquire it on complying with the terms of the existing contract. Strictly, it is not so much a transfer of the contract, as a transfer of the vendor’s title, subject to the contract; and would require express and positive provisions for the purpose, to save to the vendor any rights in the contract, on the giving of such a deed.” In Converse v. Blumrich, supra, it was held (syllabus) : “Buying the title or rights of the vendors in such contract, with knowledge of equities in their vendees, the purchaser becomes liable to the same extent, and in the same manner, as the persons from whom he bought.” This holding was said in Edwards v. Clark, 83 Mich. 246, to establish the right of a grantee to collect the rent due from a tenant without assignment of the lease or attornment on the part of the tenant. We think the decree should have ordered Besser to convey to Gustin in performance of that contract* and it may be amended to do so. What, then, must Besser convey? Should he be simply ordered to convey the interest he acquired under his deed from the plaintiff or the entire interest which he had at the time the decree was signed? Had the plaintiff perfected the record title to this lot prior to its conveyance to Besser, it seems clear that Gustin would obtain the benefit thereof. 39 Cyc. p. 1616. We are impressed that the same reasoning applies to the deed which Besser obtained from Mrs. Herrick. If obligated to convey this lot to Gustin, he must convey all the title he has at the time the conveyance becomes effective. What has been said on this subject applies with equal force to other lands for which he obtained deeds perfecting the titles thereto. 5. Conflicting Equities. It is urged that Gustin, by his failure to secure and record proper evidence of his interest in these lands, made it possible for Reibenack to defraud Besser. This claim is based on the assumption that Besser purchased in good faith and without notice of Gustin’s interest in the lands. We are unable to agree with counsel that he did so. 6. Specific Taxes. It does not appear that the specific tax provided for in section 4268 et seq., 1 Comp. Laws 1915, had been paid upon the contract between the plaintiff and Gustin, and counsel for Besser insist that it is unenforceable in court for that reason. This question was not raised on the trial or considered by the trial court. The contract was offered in evidence by the plaintiff. The proof relating thereto was received without objection. Besser, when he obtained his deed, assumed the obligation of the vendor therein. He may not at this time rely on such nonpayment as a defense. The decree entered will be modified to conform to this opinion, and, as so modified, affirmed. The question of the costs in this court is somewhat 'troublesome. The only relief obtained by Besser on '.this appeal is in the allowance to him of a personal decree against Gustin for the amount paid by him in .taxes ($1,320.91). It would have required but a comparatively small record to have presented this question to this court. The printed record contains 880 pages. In our opinion equity requires us to allow to him as a part of the taxable costs to which we find he is entitled on this appeal but one-third of the cost of procuring the transcript and printing the record. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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Sharpe, J. On July 31, 1922, plaintiff entered into a written contract with defendants Zacks and Lerner (hereafter called the defendants) wherein it agreed to furnish the material for and erect the interior tile partitions in a building then being constructed in Hamtramck, according to the plans and specifications which had been prepared therefor. The defendants, who were subcontractors under the defendant Ross, the general contractor, agreed to pay plaintiff for such material and work the sum of $910, payable as follows: “On or before the tenth (10) day of each calendar month eighty-five (85%) per cent, of the value of all materials delivered upon the premises of the purchaser by the contractor, and of work performed by the contractor, during the next preceding calendar month. Final payment to be made within thirty (30) days after the completion of said tile partitions by the contractor. If the contractor is unable to complete all work embodied in this contract due to delays by the purchaser or by other trades or for any cause beyond the control of the contractor, full payment shall be-made to the contractor on the last day of the month for all materials delivered and for all work performed during previous months.” On the same day another written contract was entered into by the same parties wherein the plaintiff agreed to furnish the materials and erect the “tile roof deck” over the building according to such plans and specifications, for which it was to receive from the defendants the sum of $3,035, payable in the manner above provided for the tile partitions. In August and September, 1922, the material necessary for the construction of the partitions and roof was shipped by plaintiff to Detroit and conveyed by its agents to the building. Soon after, plaintiff’s salesman, accompanied by its construction superintendent, visited the building and had a conversation with the defendant Zacks about the work. In answer to a later inquiry over the telephone, Zacks said that he was not being paid by Ross and that plaintiff should not begin until notified to do so. On December 4th, Zacks notified plaintiff’s agent that defendants intended to file a lien for the material furnished and work done by them and that plaintiff should not proceed with its work. The defendants soon after filed such lien, and included in it the cost of the partition and roofing tile which plaintiff had placed in the building. It was stipulated by counsel that the profit which plaintiff would have made, had it been permitted to perform its contracts, would have been $882.50. Plaintiff brought this action to recover the cost of the material furnished by it and its loss of profit, and recovered judgment for $2,763.44, which defendants here review by writ of error. Defendants’ counsel insisted upon the trial and urge here that the court was in error in not holding that it was the duty of the plaintiff, when advised that it could not proceed with its work under the contracts, to minimize its loss by retaking possession of the tile and selling them at the best price obtainable therefor, and in refusing to admit proof relating thereto. Plaintiff furnished this material under its contracts. The time of payment therefor was agreed upon, and had elapsed before the date when plaintiff’s agent was told not to proceed with the work. The cost of the material was thus segregated from the labor cost. Defendants included the amount in the lien filed by them, and had a suit pending to foreclose such lien at the time of the trial. The trial court was clearly right. The defendants might have disposed of the tile, but chose to obtain the cost thereof in thel proceedings to enforce their lien. Plaintiff was entitled to recover its loss of profits. Federal Bond & Mortgage Co. v. Burstein, 222 Mich. 88, 92, and cases cited. The judgment is affirmed. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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Clark, J. The Grand Rapids & Indiana Railroad Company, a railroad corporation, in 1864, by virtue of an act of congress granting certain public lands in aid of the construction of certain railroads, obtained grant of government lot 13, in section 35, T. 23 N., R. 8 W., Missaukee county, recorded April 22, 1901. Through mesne conveyances from the grantee the premises are now owned by the plaintiff. In 1838 the township itself was surveyed by the government, and the subdivision thereof in 1852, and the plat of the original survey was filed with the general land office. Meander lines were run around Goose lake, a fresh water pond or lake having an area of 133 acres. Lot 13 is bounded on the north and east by the lake. The following part of the plat of the township (p. 657) will show the lake as meandered and the lot. The other lots about the lake were conveyed in 1871. It will be observed from the map that as meandered lot 13 included a tongue or peninsula of land projecting into the lake in a northeasterly direction, the map and survey show no land or islands beyond, nothing to indicate any reservation by the government. The fact is that the meander line was carried across the peninsula, and that the plat shows but a small part of it. The following map (p. 658) shows the situation in fact. This map shows a cut across the peninsula. The meander line follows it. The trial judge found as a fact that the cut was artificial, not natural. We do not disturb the finding. The cut is 36 rods north of the base of the peninsula, about 2 feet deep, about 2 to 6 feet wide at bottom and about 10 to 14 feet at top. Whether it contains water and how much depend on the varying level of the lake. The peninsula is land in its entirety, high land, averaging about 12 feet above the lake level, at one point nearly 30 feet. Lot 13 within its boundaries according to the plat contains 39 acres. The portion of the peninsula north of and beyond the meander line contains about 15 acres. Prior to 1888 one Hemphill made application to the general land office to have the land north of the cut surveyed as an island. On February 27, 1888, the application' was disallowed, we quote: “The facts appear to be that the land in question is the end of a peninsula extending into the lake and existing, undoubtedly, at the time of the original survey in substantially its present condition, except as its surface may have been altered by the hand of man.' The plat of the survey does not show any island; according to the plat, the south and west boundary lines of the fractional lot (lot 13) were surveyed lines, and north and east lines the waters of the lake. The meander line, by which, on the plat, the east and north sides of the fractional lot were roughly indicated, appears not to have accurately followed the course of the shore, but to have passed across the neck of the peninsula so as not to have included in the computation of the contents of the fractional lot all of the land upon the peninsula. It would appear that if the meander line were to be traced upon the land it would leave outside of it the projecting end of the peninsula, which is now called an island by the applicant for the survey. * * * “When, therefore, a patent was given of fractional lot 13, reference for its boundaries was impliedly made to the official plat and the statutes, and these showed the natural landmark of the water on the north and east sides as the limits of the lot. This natural landmark is not to be disregarded because the meander line was inaccurate. The mistake of the surveyor, even though it were willfully or recklessly made, in failing to accurately trace the natural landmark and to embrace all the true contents of the lot in the computation of its area, is not a mistake which altered the surveyed boundaries. Its effect was, it is true, to deprive the government of the full price which might have been demanded for the land by diminishing the acreage, reported below the true quantity. This is an effect often resulting from inaccurate meander lines in the surveys, but it cannot be allowed that the purchaser from the United States according to the plat, much less those who have taken title through mesne conveyances, shall be deprived of the area which the boundaries of the lot as shown by the plat entitle them to have. The rule is familiar that courses, distances and quantities, as points of identification of a grant must yield to the natural or fixed landmarks upon the grant (Shufeldt v. Spaulding, 37 Wis. 662). “Upon the facts as presented, therefore, the lands sought to be surveyed cannot be regarded as part of the public remaining unsurveyed, and the application for survey is denied. “Very respectfully, “S. M. Stockslager, “Acting Commissioner.” In November, 1908, James Boyer made another like application. A survey, August 18, 1909, was made, entitled “Survey of- Goose Island,” etc. Upon the filing of the survey Boyer made application under section 2289, Revised Statutes of the United States, to enter lots 11 and 15 purporting to comprise, as so surveyed, Goose Island. A protest was filed by one Thorpe then the owner of lot 13. But on April 24, 1914, a patent was issued to Boyer of the land in the peninsula, north of the cut, as government lots 11 and 15. Patent was recorded on January 7, 1915. Defendant is grantee of Boyer and wife. The bill was filed to quiet title of plaintiff in and to the peninsula. Plaintiff had decree. Defendant has appealed. 1. Did title to the peninsula pass with the original conveyance of government lot 13? We think it did. The meander line cut off most of the peninsula leaving it outside the meander. The survey treated it as water, nonexistent as land, but as a part of the lake. By the survey lot 13 is bounded on at least two sides by the lake, not by the meander. In Mitchell v. Smale, 140 U. S. 406 (11 Sup. Ct. 819, 840), it was said, citing eases: “It has been decided again and again that the meander line is not a boundary, but that the body of water whose margin is meandered is the true boundary.” And we quote: “It is the policy of the government not to assert title to such tracts, and to hold that the title passes to the abutting owners as though the land were included within the meander line.” Schmitz v. Klee, 108 Wash. 9 (173 Pac. 1026); citing decisions of the United States Supreme Court. In the Mitchell Case, plaintiff owned a parcel of land for which patent had been issued containing, according to the survey, nearly four acres, and on the plat of the survey it was shown as bordering on and bounded by the lake. But there, as here, the meander line had been carried across a peninsula extending from said parcel into the lake 220 rods, of varying width, about 28 rods, of varying elevation, covered with trees “three feet in diameter and under.” After review of authorities, including Hardin v. Jordan, 140 U. S. 371 (11 Sup. Ct. 808, 838), it was held that the patent of the parcel passed title to the peninsula. To the case at bar Schmitz v. Klee, supra, is closely parallel in facts and in contentions of the parties, and there the Mitchell Case was followed. Forsyth v. Smale, 7 Bis. (U. S.) 201, presented a case of a tongue of land projecting beyond the meander line. The water and not the meander line was held to be the boundary. See, also, Railroad Co. v. Schurmeir, 7 Wall. (U. S.) 272; Hardin v. Jordan, supra; Butler v. Railroad Co., 85 Mich. 246; Grand Rapids, etc., R. Co. v. Butler, 159 U. S. 87 (15 Sup. Ct. 991); Sewers v. Hacklander, 219 Mich. 143. And we quote again from the Mitchell Case: “Our general views with regard to the effect of" patents granted for lands around the margin of a nonnavigable lake, and shown by the plat referred to therein to bind on the lake, were expressed in the preceding case of Hardin v. Jordan, and need not be repeated here. We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more or less than taking from the first grantee a most valuable, and often the most valuable part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation which ought not to be created or sanctioned. The pretence for making such surveys, arising from the fact that strips and tongues of land are found to project into the water beyond the meander line run for the purpose of getting its general contour, and of measuring the quantity to be paid for, will always exist, since such irregular projections do always, or in most cases, exist.” And syllabus of Doolan v. Carr, 125 U. S. 618 (8 Sup. Ct. 1228) : “Want of power in an officer of the land office to issue a land patent may be shown in an action at law_ by extrinsic evidence, although the patent may be issued with all the forms of law required for a patent of public land.” Cases in which the survey and plat indicate a reservation beyond the meander line by such words as “flag marsh” (Niles v. Cedar Point Club, 175 U. S. 300 [20 Sup. Ct. 124]), or “sunk lands” (Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U. S. 186 [34 Sup. Ct. 297]), are, we think, clearly distinguishable. 2. Relative to the thought that the survey may have been mistaken or wrong, we quote from Hardin v. Jordan, supra: “With the title passes away all authority or control of the executive department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel or annul the instrument which he has made and delivered. If fraud, mistake, error or wrong has been done, the courts of justice present the only remedy. These courts aré as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course.” 3. Answering the suggestion that plaintiff suffers prejudice by the failure of his grantor to appeal from the Unfavorable action toward his said protest, we quote again from Hardin v. Jordan, supra: “If the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale or other disposition, or they had been reserved from sale, the department had no jurisdiction to transfer the lands, and their attempted conveyance 'by patent is inoperative and void. So that, if the lands had been ‘previously disposed of,’ the department has no jurisdiction over them; and the question whether they have, or have not, been previously disposed of is a judicial question, and not determinable by the executive department, except for the purpose of governing its own conduct in the administration of its functions.” The lands having been, as we hold, previously disposed of, plaintiff suffers no prejudice by the decision and action of the department made and taken without jurisdiction. 4. The defense of adverse possession, urged in the trial court, is withdrawn in the brief. That the relief prayed should be denied because of laches, the statute of limitations, or because of a further claim of es-toppel, are questions the discussion of which would be without profit. The decree is affirmed, with costs to plaintiff. Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred.

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Snow, J. The plaintiff is a mutual fire insurance company reorganized under chapter four of part four of Act No. 256, Pub. Acts 1917, as amended by Act No. 407, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 9100 [264] et seq.). Section 13 thereof provides: “It shall be the duty of the incorporators of any company organized under, or subject to the provisions of, this chapter to prescribe in their articles of association, the liabilities of the members to be ratably assessed towards defraying the losses and expenses of such companies, and the mode and manner of collecting such assessments, and the members shall be liable to assessment for all liabilities of the company to the extent declared in the articles of association; and the liability of the persons insured in such companies and the members thereof, for the losses or expenses of such companies, shall not exceed the liabilities assumed by such persons when taking such insurance or by such members when joining such company, and in payment in full by such person or member of the amount assumed or agreed to be paid on taking such insurance, or on becoming a member of such company, the said persons so insured as aforesaid and the said members of such companies shall be released and absolved from any and all further liability, for such losses or expenses.” On April 11, 1922, the defendant made application for $5,900 of insurance upon a three-year term class three policy. The premium fee on class three policies was fixed at an amount which the company estimated would take care of all losses and expenses ap-portionable to policies of that class during the insured period, and in defendant’s case it amounted to $48.67, a membership of $1, and a policy fee of 50 cents, making a total of $50.17, which he paid in cash. The liability of the members was not prescribed in the articles of association, as required by the quoted section of the statute, but in the application for insurance it was provided that such application was subject to the “articles of association, by-laws, rules and regulations now in force, or that may hereafter be in force.” In May, 1922, and again in June, 1923, the company amended its articles of association to provide for the right to levy an assessment upon policies in class three, not to exceed the amount of one premium thereon, in the event that business in that class should not be sufficient to pay losses and provide a sufficient reserve. In July, 1923, pursuant to such amendments, an assessment was made on class three members for their pro rata share of losses, which had been very heavy. Defendant’s assessment amounted to $41.60 and, upon his refusal to pay the same, suit was commenced against him in justice’s court. From a judgment in his favor an appeal was taken to the circuit court, where, by direction of the court, a judgment was again rendered in defendant’s favor, and is here reviewed on writ of error. It is the contention of plaintiff company that the provision of the statute, requiring the liability of the members to be prescribed in its articles of association, is not mandatory, but directory only; that the omission from the articles was an oversight, a mere irregularity, and that the statute, containing a provision for the liability of members to be assessed for losses, expenses, and liabilities of the company, constituted a part of the contract between the parties, making it unnecessary to repeat its provisions in the articles of association; and, therefore, that while the liability of the defendant was not prescribed in the articles of association, such liability was not to be measured by the amount paid by defendant when he became insured, but that, because he had agreed in his application to become subject to any rule or regulation that might thereafter be put in force, his liability to the company could at any time be enlarged by an amendment to the articles of association, making provision therefor. If plaintiff’s contention is correct, the section of the statute above quoted, under which the company was organized, and a compliance with which should determine its right to exist and continue, must be held for naught. The purpose of this section of the law was to provide accessible means for the prospective member to ascertain the extent of his liability. He was not to be compelled to go to the law, which in any event he would have difficulty in finding or understanding, but it was made as easy as possible for him by requiring that it be set out in the articles of association, which were a part of his policy, so that he might read there what his liabilities were in return for the protection of insurance that was to be afforded him. If this provision of the statute, requiring the liabilities of members to be prescribed in the articles of association, was not a mandatory one, the evident purpose it was designed to accomplish could be easily defeated by a simple failure to comply with it, as was done in the instant case. How can the' claimed right of the plaintiff to levy an assessment against defendant at will, without sufficiently expressed authority in the articles of association so to do, be reconciled with the law which provides that the liability of persons insured “shall not exceed the liabilities assumed by such persons when taking such insurance or by such member when joining such. company?” There was nothing in the articles of association which might lead the defendant to expect that he couldi ever be called upon, during the three-year life of his policy, to meet some action of the company which would increase his liability to it beyond that which he had the right then to know he was undertaking. This court has never been called upon to determine the rights of mutual fire insurance companies organized under this statute to levy additional assessments on its members, but plaintiff hast called our attention to several life insurance cases, organized under Various other statutes, for authority that defendant was bound by amendment to the articles of association as to assessments or additional liabilities, because his application was subject to rules and regulations that might thereafter be in force. We have examined these cases and conclude that the most that plaintiff can claim for them is that where there was an agreement with the member, at the time he became such, to the effect that he would be bound by future rates and liabilities to be put in force and imposed from time to time as the company insuring deemed necessary, he was bound by such agreement and responsible for such increased liability imposed upon him thereunder. But no such provision was embodied in the articles of association in the instant case, and it was clearly the intent of the legislature to confine the members’ liability within the limits specified in such articles. We are not called upon to determine, and do not attempt to prescribe, what provision might be incorporated in the articles of association relative to liabilities of members, that would at once satisfy the statute, and still permit additional assessments, as was attempted in the instant case. It is sufficient here to say that the articles contained no such provision when defendant became a member of the company, and the attempted imposition of additional obligation against him was clearly void. Section 16 of the act under consideration provides in substance that it is the duty of the president and ' secretary of all mutual companies to levy an assessment sufficient to cover all. of their liabilities, and section 17 of the act provides a penalty for their wilful failure to do so. Plaintiff contends that these sections not only permit, but impose upon it the specific duty of doing just what was done in the instant case, notwithstanding the fact that no such provisions are contained in its articles of association, by-laws, rules or regulations; that these sections are inconsistent with section 13 above referred to. Authority is not given to the company to levy assessments upon members by these sections. Their intent and purpose is to place upon some officer of the company the duty to perform the necessary ministerial functions of making the levy of lawful assessments, so that just claims might not be defeated or delayed, We do not find these sections to be in any way inconsistent with section 13, or that they confer upon the company any right to levy an assessment upon the members that but for them would be illegal. Counsel for plaintiff places reliance upon Russell v. Berry, 51 Mich. 289, as authority for the right to levy the assessment against defendant. In that case this court holds that it was section 17 of the act under which the company was organized that gave it conclusive authority to levy assessments. Such section declares that the receiver “shall at once proceed to assess upon all members and persons insured in such company, such sums of money as will in the aggregate be sufficient to pay all the losses and liabilities of said company, together with the services and expenses of such receiver,” etc. The company was in the hands of a receiver and he was simply following his statutory duty in making the assessment and prosecuting for its collection. We are not dealing with a receivership or insolvency in the instant case, and no right to assess is claimed by virtue of any such provision of the law as controlled the Russell Case. And, too, it must be borne in mind that the law under which plaintiff is organized makes it mandatory to prescribe the limitation of liability in its articles of association. The Russell Case, therefore, is not here controlling. See Macklem v. Bacon, 57 Mich. 334. We have examined with care all questions suggested in the briefs of counsel, and conclude the case must be disposed of upon the effect that must be given the statute discussed. We agree with the trial court that this statute requires the company to set forth in its articles of association the full liability of the member, and that further than is there set forth liability cannot be imposed. As the articles of association, at the time defendant became a member, did not comply with the law, and as they utterly failed to confer the right to impose additional liabilities upon the defendant to those he assumed and paid, we are constrained to hold the assessment attempted against the defendant illegal and void. The judgment in favor of the defendant is therefore affirmed, with costs. Bird, C. J., and Sharpe, Steere, Fellows, Wiest. Clark, and McDonald, JJ., concurred.

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Campbell, J. This is a bill the object of which is to get rid of a foreclosure decree, and of the sale under it, and to open the case on its merits, and allow complainant to redeem. It is in effect a bill in the nature of a bill of review, filed without leave and without security, as required by rule 101, and filed after a long delay. The bill is not sworn to, and is not accompanied by any sworn showing, without which no leave could properly be granted. These would be sufficient reasons why it should not be .sustained, and why the court below should have dismissed it. But on the facts alleged it is not sustainable. It shows a mortgage executed in 1875, and foreclosed by Chancery proceedings in 1876, when a decree was made, which is now claimed to have been for $50 too much. That amount would not, as a separate grievance, be enough, to give chancery jurisdiction. It is claimed that this decree, although the parties all appeared, was taken without proper notice. But, as already stated, even this is not sworn to, and is not presumable. But, furthermore, this complainant knew of the decree soon after, and made no objection to it, and made or claims to have made a number of payments on it. In 1883 a chancery sale was made, and complainant claims that this was also without any notice except that usual on sales. No other personal notice is required by our practice. The sale was confirmed, leaving a balance unpaid. No personal judgment has been sought for this balance, and none can be rendered without bringing him in directly, when he can set up any defenses which he has not forfeited. He knew of this sale about a year after it was made, but does not claim to have made any objection to any one, or to have applied to the court for relief. This bill was not filed till April, 1886, about three years after the sale. Under the rules, a bill of review should be filed within the time allowed for appealing, unless on newly-discovered evidence, or when there has been some reason that is satisfactory for the delay. Here the decree was acquiesced in six yearn, and that cannot fairly be disturbed. Two years elapsed after complainant knew of the sale, and no reason is given why he did not apply for relief within a reasonable time after he found it out. The time for appealing might be a reasonable one, perhaps, within which to apply on facts as well known then as now. But. this bill was not filed until that period had passed several times over. And not only is no excuse given, but no> fact is sworn to at all. The case has no foundation, and should have been dismissed, which is now done, with costs of both courts; the decree being reversed. Sherwood, C. J., Champlin and Morse, JJ., concurred. Long, J., did not sit.

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Champlin, J. Plaintiff recovered judgment before a justice of the peace against defendant upon a promissory note dated August 18, 1886, for $75, payable to C. H. Williams, or bearer, due on or before one year from date, and signed by defendant. Defendant appealed to the circuit court for Oakland county, where a trial was had, and resulted in a verdict for plaintiff. The suit was defended on the ground that the note was given as part of a scheme to defraud the public, and was illegal and void as against public policy, and that such facts were well known to plaintiff at the time he purchased the same. The defendant is a farmer residing in Oakland county. Tbe plaintiff is an attorney at law, and is also engaged in buying and selling notes, loaning money, dealing in tax titles, trading farms, and other speculations. On August 18, 1886, one Sherwood and another person, representing themselves as agents of the Ohio & Great "Western Seed Company, went to defendant's farm, where he >vas in the field plowing, and told him they would like to sell him some “ Bed Lyon wheat;'' told him where they had sold wheat the previous year, and that they had ■always sold for parties as they agreed; and they unfolded to him the scheme for cheating the gullible portion of the agricultural community by selling wheat to them at speculative prices. They exhibited to him the bond, which he read and perfectly understood, which they proposed to give him if he would give them his notes for 15 bushels of wheat. The bond, with the indorsements thereon, discloses the whole scheme, and we therefore give the contents entire, to wit: “ No. 595. Capital Stock, $50,000.00. “This Bond is Used for Wheat Only. “ Incorporated July 21, 1885, under the state laws of Ohio, for the production and sale of grain. “Home Oeeice, Naeoleon, O., U. S. A. “Bond of the Ohio & Great Western Seed Company. “It is agreed and understood by and between the party named in this bond and said company that the transaction covered by this obligation is of a speculative character, and is not based upon the real value of the grain. “ Mr. C. V. Seeley, of Oakland county, Southfield township, witnesseth, that on or before the 18th day of July, A. D. 1887, we hereby agree to sell thirty (30) bushels of Mr. C. V. Seeley wheat, at $15 per bushel, and for which he agrees to take his pay in notes. And the said Mr. C. V. Seeley hereby acknowledges that he has bought of the said company fifteen bushels of the Bed Lyon wheat, at $15 per bushel, as a speculation, and for which he has given his note for the same, and that said price is not based upon its real value. And the said Mr. C. V. Seeley hereby agrees to allow the said company 33J per cent, of all notes taken for all of his wheat sold at §15 per bushel, as their commission. “Signed and sealed this 18th day of August, 1886. “The Ohio & Great Western Seed Company, “Per C. H. Williams, Secretary. “The Ohio & Great [Seal] Attest: J. B. Atjgenstein, President.. “Western Seed Company. . C. V. Seeley, Purchaser. On the back of said bond is the following: “Capital Stock, $50,000.00. Constitution and By-Laws.. The Ohio & Great Western Seed Co.> “This company was incorporated under the laws of the state of Ohio governing stock companies, July 31, 1885, recorded in volume 33, page 60, of the Records of Incorporation. The "following rules were adopted by the company for the sale of wheat: “ Section 1. All bonds shall be signed and sealed by the secretary of the company, and attested by the president, and this company will be responsible for their business transactions according to the laws made and provided for governing stock companies in the state of Ohio, and under which this company was incorporated. “Sec. 2. All purchasers of wheat shall receive a bond agreeing to sell double the amount of wheat purchased, at $15 per bushel, a speculative value. Each purchaser hereby agrees to allow the said company one-tliird of all notes taken for all his wheat sold at $15 per bushel, as their commission. “Sec. 3. If any purchaser of wheat from this company fails to raise the amount specified in his bond, the-said amount shall be furnished him free of charge, and sold the same as specified in the bond. “Sec. 4. There shall be no less than 10 nor more that 30 bushels of wheat sold to any one purchaser, or to more than five in any one township in one year. “Sec. 5. All wheat shall be sold by the company at $15 per bushel to .good and responsible parties, and the said company shall receive a commission of 33-^ per cent., payable in notes. “Sec. 6. It must be further agreed by said purchaser that he will do all he can to promote the interest and assist in the sale of grain in this company, and that he will report to the office of the company any bad conduct or misdemeanor on the part of any agent representing said company. “■Sec. 7. All communications concerning the business of this company shall be addressed to The Ohio & Great Western Seed Co., Napoleon, Ohio.” The wheat was furnished defendant as agreed, which he sowed, and harvested about 12 bushels to the acre, but the Ohio & Great Western Seed Company has never ■appeared to Mr. Seeley since. The man who signed his name as “ O. H. Williams, Secretary,” sold the notes given by defendant, soon after the date thereof, to the plaintiff in this suit, together with several others made by farmers in the vicinity. Several exceptions were taken to the rulings of the court upon the admission and rejection of testimony. We find no error in such rulings, and they were not of sufficient importance as to require discussion here. Aside from the refusal to give certain instructions requested by counsel for defendant, the important question upon this record is whether the note sued upon is void, in the hands of an innocent holder for value, as being against public policy; and whether, upon this issue, the refusal of the court to ■charge as requested by counsel for defendant, and the .charge as given, were proper. The scheme, upon its face, was a transparent fraud. The ■design to defraud third parties was mutual, and entered into with a common understanding between the parties. The gains to be derived by the defendant were dependent upon duping others into purchasing on a speculation in the same manner that defendant was duped, and he agreed and entered into a scheme by which two or more persons were to be defrauded, and the plunder divided, two-thirds to him, and one-third to his confederates. A similar scheme was declared by this Court in McNamara v. Gargett, 68 Mich. 454 (36 N. W. Rep. 218), to be against public policy, and void as between the par ties, and as to purchasers of notes with notice of the consideration. There is a distinction between contracts which are 'void between the immediate parties because they will not be enforced on grounds of public policy, and contracts where the statute declares them void. In the first class, negotiable instruments, fair on their face, which have, before maturity, passed, into the hands of Iona fide holders for value, will be enforced in the hands of such holders; but in the other class they are void as against the party who' gave them, and in the hands of all other parties. Edwards v. Dick, 4 Barn. & Ald. 212; Towne v. Rice, 122 Mass. 71; Aurora v. West, 22 Ind. 88; Eagle v. Kohn, 84 Ill. 292; Cowing v. Altman, 71 N. Y. 435. At the time the note in question was given and transferred to the plaintiff, there was no statute of this State' declaring such notes void. It is therefore good in the hands of an innocent holder for value, before maturity, and without notice or knowledge of the transaction in which it originated. The following requests were presented to the court by counsel for defendant, and upon the.refusal to give the instructions as requested error is assigned: “ 4. Actual notice to the plaintiff, when he purchased this note, that it was given for an illegal consideration, is not necessary to defeat his recovery. If he had notice or knowledge of such facts and circumstances in relation to what the note was given for as to make his purchase of it an act of bad faith,, then he cannot recover.” “ 6. If the plaintiff, when he purchased this note, from facts and circumstances within his knowledge relative to the consideration of the note, had good reason to and did believe that it was given upon an illegal consideration, he cannot recover. “7. If the jury find that, at the time plaintiff purchased this note, he did not know the exact terms or consideration upon which it was given, yet, from circumstances of which he had notice, he did know, believe, or have good reason to believe, that it was tainted with fraud or illegality, then he cannot recover. “8. Unless the plaintiff has satisfied you by a preponderance of proof that, at the time he purchased this note, he did not know, have notice, believe, or have good reason to believe, that it was tainted with fraud or illegality, -and did not know or have notice of facts or circumstances impeaching its validity, he cannot recover." In response to the several requests presented by the counsel for the defendant, the circuit judge charged the jury as follows: “ The plaintiff cannot recover in this case unless he is a bona ficle holder; and if you find from the evidence that,' at the time plaintiff purchased this note, he knew the circumstances impeaching its validity, then plaintiff cannot recover. “This note is void as between the parties thereto, that is, as between defendant and C. H. Williams, for the reason that it was given for an illegal consideration, and plaintiff cannot recover unless he is a Iona fide holder. “If the jury find that the consideration upon which the note was given was the bond of a company, whereby the company agreed to sell ordinary wheat under the jfictitious name of Eed Lyon wheat, at the speculative value of $15 per bushel, whereas its real value was not to exceed $1 per bushel, then such notes are void, and plaintiff cannot recover if, at or before the time he purchased it, he had knowledge or notice that this note was given on such consideration. _ “If the plaintiff had,notice or knowledge of such facts and circumstances in relation to what the note was given for, as to make his- purchase of it an act of bad faith, then he cannot recover. “The fact that plaintiff paid value for the note is not sufficient of itself to make him a bona fide holder. Although he may have paid value, still he is not entitled to recover if he had notice or knowledge of facts or circumstances impeaching its validity. “If the jury find that, at the time plaintiff purchased this note, he did not know the exact terms or consideration upon which it is given, yet from circumstances ■ of which he had notice he knew that it was tainted with fraud or illegality, then he cannot recover. “ Unless the plaintiff has satisfied you by a preponderance of proof that, at the time he purchased this note, he did not know or have notice that it was tainted with fraud or illegality, and did not know or have notice of facts or circumstances impeaching its validity, he cannot recover.” . He also charged the jury upon the right of the plaintiff to recover under the testimony in the case as follows: “On the part of the plaintiff, I charge you as follows: That this note is negotiable, and subject to all the rules as to negotiable paper, and may become the property of the holder by mere purchase and delivery. “ That the law will sustain the claim of an innocent, bona fide holder of a negotiable promissory note for a valuable consideration, purchased before due, however viciously other parties may have acted, or whatever objection to the consideration may arise. If the jury finds that the plaintiff purchased this note before it became due, innocently, and. for a valuable consideration, before maturity, by giving money for it in the usual course of business, he is entitled to recover on it. “ That the possession of a note payable to bearer, unac-' companied by any declaration or other evidence in regard to it, is prima facie evidence that the holder is the owner of it; that he took it for value before it became due, and in the regular course of business, — that is to say, if simply this note had been offered in evidence, and then both parties had rested, it would have been your duty, of course, to have rendered a verdict for the amount of the note, with the interest on it; and that is what I desire to say by this request with reference to its being prima facie evidence. But, after the note is in, then it is entirely competent to do what has been done in this ■case, — to give other evidence both as to the facts and circumstances, and oral testimony, for the purpose of determining the bona fides of the transaction. If there is nothing upon the face of a negotiable note to notify the purchaser that the note was originally given upon an illegal consideration or through fraud, the purchaser who pays value therefor, and takes it in good faith before maturity, may recover as against the maker. This is true, even though the purchaser be in possession of facts and circumstances sufficient to arouse suspicion in the minds of persons of ordinary prudence. “And in this connection I desire to say that just a mere suspicion that there may be something wrong is not sufficient to defeat it; that, if the plaintiff purchased this note before due, without knowledge of any defect of title or defense to it, and for a valuable consideration, he will take a good title, unaffected by any of the defenses now set up by the defendant. Suspicion of the defect of title, or knowledge of circumstances which would excite suspicion in the mind of a prudent man, will not defeat his title alone; that is, mere suspicion itself will not do so. A holder of negotiable paper who takes it before maturity, for a valuable consideration-, in the usual course of business, without knowledge of the facts which impeach its validity as between antecedent parties, is deemed a Iona fide holder. “That a party about to purchase a promissory note is under no obligation to call upon the maker, and make inquiry as to possible defenses which he may have, and of which the purchaser has no notice, either from something appearing on the face of the paper, or from facts communicated to him at or before the time of the purchase. That is to say, when a paper is presented to a man entirely free from anything on the face of the paper, or free from any knowledge which he may have which would go to impeach its validity, he is under no obligation to go and look the man up, and make inquiries in reference to it. “ The fact that the note was purchased by the plaintiff at a discount was nothing unusual or contrary to the usual manner in which those engaged in discounting notes transact that kind of business, and is no evidence, of itself, of bad faith on the part of the plaintiff. But I desire to say, in that connection, that the fact that it was purchased at a discount may be taken into consideration, with all the facts and circumstances, as bearing upon the question ■of good faith. Bad faith or fraud cannot be presumed without proof. That is undoubtedly true, but the proof may be not only oral testimony, but it may be acts and facts and circumstances which appear in evidence in the case where the question is .involved. * * * The fact that defendant knew, when he gave his note, that the wheat was not worth the price he was paying for it, and went into the transaction as a speculation, would not legalize the transaction, and cannot in any way help plaintiff to recover. “ There has been something said in the argument of counsel with reference to Mr. Seeley's acting in bad faith in this matter, and I desire to say to you in this connection that it does not make any difference whether Mr. Seeley was acting in just as bad faith in connection with this matter as was Mr. Williams, so far as this case is concerned. The courts hold — and I desire to emphasize' that fact to you now — that the contracts like this, as between the original parties, are absolutely void; and they are held so, not for the advantage of either individual who is connected with the matter, but for the advantage of the public, — that it is against public policy that they should be sustained by the courts. And whether Mr. Seeley expected to make a good deal of money, or whether he was acting in entire good faith, does not make any difference so far as this case is concerned. The question for you to consider in this case is, was the plaintiff acting in good faith? Did he buy this note before maturity, for a valuable consideration, without notice of the defense? That is the important question for you to consider when you shall attempt to get at your verdict. “ If, from the facts and circumstances surrounding this case, you are satisfied that plaintiff's statement in relation to his knowledge about what the note was given for is false, you are under no obligation to believe him, even though uncontradieted by oral proof. Unless his testimony has convinced your reason, you may reject any part of «it, or reject it altogether. What is true of him is true of any witness in the case. In passing upon the truthfulness of his statement, you may take into consideration his acts, and all the facts and circumstances involved in the case. “In this case the burden is upon the plaintiff to satisfy you by a preponderance of evidence that, at the time he purchased the nóte in question, he did not have knowledge or notice of the consideration upon which it was based.” The particular complaint made by counsel for defendant against the charge of the court is that the court did not, in terms or substantially, charge the jury that if the plaintiff, when he purchased the note, from facts and circumstances within his knowledge relative to the consideration of the note, had good reason to and did believe that it was given upon an illegal consideration, he cannot recover. The important part which negotiable paper performs in the business transactions of a commercial people makes it of the utmost importance that the rules which govern its transfer from one to another, and the rights of the holder, should be uniform and stable. It should not be subjected to new tests concerning its negotiability and validity in the hands of innocent holders for value. In England, prior to 1820, it was pretty generally held that bad faith alone would prevent a .holder for value from recovering upon commercial paper. In Gill v. Cubitt, 3 Barn. & C. 466, under the influence of Lord Tenterden (see Slater v. West, 3 Car. & P. 325), due care and caution was made a test. In 1834 the king’s bench held that nothing short of gross negligence could defeat the title of a holder for value. Crook v. Jadis, 5 Barn. & Adol. 909. But Lord Denman, in 1836, in the case of Goodman v. Harvey, 4 Adol. & E. 876, reasserted the doctrine, which has since been held in England, that bad faith alone could disentitle a holder for value to recover; that gross negligence might be evidence of bad faith, but was not conclusive of it. This doctrine is now firmly established in the United States. Murray v. Lardner, 2 Wall. 110; Collins v. Gilbert, 94 U. S. 753; Farrell v. Lovett, 68 Me. 326; Bank v. Bank, 10 Cush. 488; Chapman v. Rose, 56 N. Y. 140; Johnson v. Way, 27 Ohio St. 374; Shreeves v. Allen, 79 Ill. 553; Kelley v. Whitney, 45 Wis. 110; Miller v. Finley, 26 Mich. 254; Howry v. Eppinger, 34 Id. 29; Hamilton v. Vought, 34 N. J. Law, 187; Welch v. Sage, 47 N. Y. 143; Oats v. Bank, 100 U. S. 239. In Miller v. Finley, Mr. Justice Campbell said: “ There is nothing on the face of the paper to cast suspicion upon its character;, and it can only be impeached, in the hands of a holder for value, by evidence that he took it under circumstances which rendered him guilty of bad faith. The proof must show that the holder for value, who takes a note with no ear-marks of fraud or illegality, has had notice of such a nature that he could not honestly take the paper without further inquiry. The facts of which he must have either knowledge or notice must be such as go to- the defects of title." If we should adopt the test contended for by defendant, namely, that if, from facts and circumstances within his knowledge relative to the consideration, the purchaser had good reason to and did believe that it was given upon an illegal consideration, he cannot recover, it would introduce a new element of uncertainty in the legal title of negotiable paper, and permit a jury to speculate upon the effect facts or circumstances within the knowledge of the holder of. such paper produced upon his mind, and whether he had good reason to believe or did believe it was given upon an illegal consideration. Facts and circumstances innocent in themselves, and insufficient to raise a suspicion of fraud or illegality, might be deemed by one jury sufficient grounds for belief, while another would require very plain indications of fraud or unfair dealing. We think the rule which has been so long and so universally established among English-speaking people is broad enough to protect the rights of parties to such paper. Baron Parke, in the case of May v. Chapman, 16 Mees. & W. 355, said: “ I agree that ‘ notice and knowledge ’ means, not merely express notice, but knowledge, or the means of knowledge, to which the party willfully shuts his eyes." And Chief Justice Beasley, in Hamilton v. Vought, supra, said: “ Mere carelessness in taking the paper will not of itself impair the title so acquired, but carelessness may be so gross that bad faith may be inferred from it. Nor is it necessary, in order to defeat the title of the holder, that he have actual knowledge of the facts and circumstances constituting the particular fraud. It is sufficient if he have knowledge that the paper is tainted with any fraud, although he may be ignorant of the nature of it.” We think the court covered the whole law of the case in his instructions to the jury. The testimony was conflicting. If the jury believed the plaintiff, they would be justified in finding for the plaintiff; and also, we think, there was testimony which would have justified them in finding that he was a bad-faith holder. The defendant did not occupy a position which was calculated to influence the jury in going a great ways to relieve him of an obligation which he had 'voluntarily assumed with the intention of imposing a fraudulent scheme upon his fellow-townsmen. We discover no error in the record, and the judgment is affirmed. Morse and Campbell, JJ., concurred with Champlin, J.

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Sherwood, O. J. Complainant filed her bill in the circuit court for the county of Jackson, to procure the surrender and cancellation of two deeds, — one bearing date May 29, 1885, purporting to be executed by the •complainant to William H. Bussey, of the state of Maine, a brother of the defendant Mark T. Bussey, in trust for the latter, who is the husband of complainant; and the other' bearing date July 6, 1885, purporting to be executed by complainant to the said William H. Bussey. They both purport to convey land owned at the •date of the deeds, lying in the city and county of Jackson. The first of said deeds is in the form of a quitclaim, and contains a provision that said deed should never have the effect to deprive the complainant of her interest in said land, and the right to occupy the property, as the wife of her husband Mark T. Bussey, and in no other manner. The other is in form a warranty deed. Both ■deeds were duly recorded in the register’s office in the county of Jackson. The lands conveyed included her homestead, upon which she then lived and still resides. The bill charges that the deeds were forgeries, and void; and upon that ground the relief she asks is prayed. The defendant Mark T. Bussey filed his answer, and’ admitted that the deeds appear of record, and averred that they were genuine, and not fraudulent or forged;. but that they were executed by the complainant voluntarily, and for the purposes therein stated, and convey the title, to the lands therein described to the said William H. Bussey. The defendant William H. Bussey did not appear, and was brought in under the statute as a non-resident, defendant, and the bill was taken as confessed as against, him. The bill was filed in October, 1885. The proofs were-taken in open court in the month of' May, 1887, before-Judge Gridley. The defendant cross-examined the complainant’s witnesses, but put in no testimony on his part; and upon the hearing the circuit judge rendered a decree in favor of the complainant, adjudged the deeds forgeries and void, and granted the relief prayed. Defendant Mark T. Bussey asks a review of the case in this Court. On May 11, before the hearing, counsel for the appellant, made an application to the court for a postponement, for the purpose of obtaining the testimony of an absent witness. The application was contested by the complainant, and denied by the court. When the cause was called for hearing on May 19, 1887, counsel for defendant Mark T. Bussey objected to the case being heard, for the reason-that no reference of the case had been made as to William H. Bussey. This objection was overruled by the court; and the case was allowed to proceed. The circuit judge made his decree in the case on June 7, after the-cause was heard. On July 19, 1887, on the petition of defendant Mark T. Bussey, and the affidavits accompanying, an order for a rehearing was granted, upon condition that Bussey should pay costs of trial, to be taxed, within 10 days. after notice of taxation, and that he might produce and examine witnesses during that term of the court which was then in session. On September 1, 1887, defendant made a motion to further continue the case for rehearing. This motion was opposed by complainant’s counsel, and the motion was denied. In the order made denying the motion the court recites the fact that defendant had not paid the costs directed in the former order, and permitted defendant another day in which to put in proofs. No proofs were, however, ever put in by the defendants, or either of them. It was claimed by Mark T. Bussey that one of the material witnesses he wished to use was a subscribing witness to the deeds, whose' name was Case, and that the other was a Mr. Jenks; but it appears Jenks was not used, though residing in Jackson at the time, and a portion of the time he was- in the court-room. IJpon the point that no reference was made as to William H. Bussey, it only need be said none was necessary. 'The proofs were taken in open court, and the only' question in the case was brought to the attention of the court, and proofs taken upon it. The several motions were all in the discretion of the court. It seems from the record that part of them were in favor of complainant, and part for the defendant, so far as the action of the court shows. Judge Gridley’s acquaintance with the parties, and the credibility of the affiants, in all these proceedings, gave him superior advantages for information in passing upon these motions, and his decisions ought not to be disturbed unless a clear abuse of the discretion used appears; and we have failed to discover any such misuse of judicial discretion. In regard to the decree upon the merits, we are clearly of the opinion the testimony justified the conclusion reached by the circuit judge. We think the case presented by the record is one appealing strongly for the exercise of tbe equity power of the court in behalf of tbe complainant, and we feel very certain the court has committed no error in the decree rendered; and, without referring any more particularly to the testimony as it is presented, we- will only say, further, that the fraud attempted in this case can never fail to fall under the condemnation of a court of equity when its consideration is challenged, under the circumstances appearing in this case. Tbe decree will be affirmed. Champlin, Morse, and Campbell, JJ., concurred. Long, J., did not sit.

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Sherwood, C. J. The relator lives in the county of Saginaw, and is plaintiff in a cause in the circuit court for that county, wherein the Flint & Pere Marquette-Railroad Company is defendant. The cause came on for trial at the May term, 1888, and a jury was summoned for that purpose. The defendant thereupon challenged the array of the panel upon the following grounds, as stated by its counsel: “1. That the persons selected to serve as petit jurors in the year 1887, and from which the jurors of the May term, 1888, of this court were drawn in part, from the 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th wards of the city of Bast Saginaw, were not selected by the assessor of said city, and the alderman of each ward thereof, as is required by law, but it says such selection was made by the assessor of said city alone. “2. That the lists of persons selected to serve as petit jurors for the May, 1888, term of said court, and filed in the office of the clerk of this court, from all or any of the wards of the city of Bast Saginaw, were not made out. and signed by the assessor of said city and the- aldermen of said wards, nor by the assessor and a major part of the aldermen, but were made out, signed, and returned to-the clerk of Saginaw county by the assessor of said city alone. “3. And, for further cause of such challenge, it says that the list of jurors returned from the various townships and wards in Saginaw county, and on file in the office of the clerk of Saginaw county, in the year 1887, and from which lists the jury impaneled in this cause was drawn, shows that 376 names were selected and returned as petit jurors, and 216 names were so selected and returned as grand jurors, making the total number exceed by 192 the number which by law could be returned, and that the list of names so returned to serve as petit jurors exceeds by 176 the number which by law could be returned to serve as such petit jurors. “ 4. That the list of persons selected and returned from all the wards of the city of Saginaw, and from which the jurors from said city for the May term, 1888, of said court, were drawn, are all designated as petit jurors, and not one-half petit and one-half grand jurors, as required by law, and so the number of persons so selected as petit jurors from said city is excessive by upwards of 35. “5. That the lists of persons returned as petit jurors in 1887, and from which jurors for the May term, 1888, of this court were drawn, from the townships of Brady, Chapin, Fremont, James, Jonesfield, Saginaw, and St. Charles is largely in excess of the number which by law could be returned from said townships, and from each of said townships. “6. That in the lists of persons returned to serve as jurors in 1887, and from which the petit jurors for the May term of said court for 1888 were drawn, from the townships of Brady, Fremont, Saginaw, and St. Charles, 78 names are returned, 60 of which are designated as petit, jurors, and that the number of persons returned from said townships are largely in excess of that which is allowed by law. “ 7. That the number of names returned to the county clerk from the townships and wards of Saginaw county, and from which the jurors for the May, 1888, term of said court, were drawn, had no regard to the population of the respective townships and wards, or to the population of Saginaw county, computed according to the last census, of said townships, wards, and counties.” These statements of causes of challenge the plaintiff admitted to be true. The circuit judge by his order sustained the challenge, discharged the jury, and continued the cause for trial until the next term of the court. The relator now asks that the circuit judge may be required by a writ of mandamus to vacate and set aside said order. The respondent, in making answer to the order to show cause, admits the facts stated in relator’s petition to be true, and insists that he should hot be required to set aside the order, for the reason that the statutes relating to- securing a jury for the trial of the case have not been complied, with by the township and city officers. The principal questions raised by the record in the case arise under sections 7554 and 7556 of Howell’s Statutes, relating to the duties of officers in returning lists of persons to serve as jurors in the circuit court. By the first section referred to it is provided that— “ The supervisor and township clerk of each township,’’ and, in cities, “ the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district, * * * make a list of persons to serve as petit jurors, and a list of persons to serve as grand jurors, for the ensuing year,’’ the number to be based upon the population shown in the last census. By the charter of the city of Bast Saginaw, which lies in said county, the office of assessor is created, and he is required to make and return lists of persons to serve as jurors. Local Acts of 1885, pp. 350, 365. By the provisions of the charter of the city of Saginaw the controller is made the assessor of the city, and is required to make out and return,the list of jurors for each ensuing year. Local Acts of 1887, p. 727. It appears by the return of the circuit judge that the persons selected as petit jurors in 1887, and from which the jurors were drawn at the May term, 1888, in the suit in question, were drawn, in part, from the 1st, 2d, 3d, 4th, 5th, 6th, 7th, and 8th wards in the city of Bast Saginaw, and were not selected by the assessor of the city, and the.alderman of each ward thereof, but the selection was made by the assessor alone; and that the lists of persons selected and returned were not signed by the assessor and aldermen, but by the assessor only. This, it is claimed by respondent’s counsel, is not a compliance with the law, and rendered the action taken by the circuit judge necessary. The selection of the jury, secured to litigants by our 'Constitution, is of first importance to parties, and they have a right to have such jury— “ Constituted in substantial conformity with the law as established; and where a departure has occurred, and the positive provisions enacted to secure and guard ‘ the right -of trial by jury1 have been violated or disregarded, there is no warrant in our jurisprudence for treating the deviations as harmless irregularities.1’ And, when the party to be affected thereby seasonably makes his objections to such deviations, he stands on substantial and valuable rights, and ought to have his challenge prevail. The provisions of the law cannot be set aside, although it may appear to us that neither party has been injured by the transgression. That we never can for a certainty know, and for this reason safety can only be secured by a -reasonable compliance with the law. There is nothing compulsory upon the Legislature as to how or in what manner lawful jurors1 names shall be returned to the box, but it is required to make some regulation upon the subject; and the general law it has enacted is of no higher or greater authority than any other enactment upon that subject. One of the princijDal objects in any mode prescribed has been that the panel shall come from the body of the county; and this means, under our system of territorial division, from every township in the county. Substantially the same provisions as we now have for getting a jury have continued during our State existence. Rev. Stat. 1838, pp. 439-446; Rev. Stat. 1846, p. 463; Laws of 1853, p. 188, § 9; 2 Comp. Laws of 1857, p. 1188; 2 Comp. Laws of 1871, p. 1719; also provisions hereinbefore referred to. Bast Saginaw received her charter as a city as early as 1859; and by an amendment in 1869 it was made the duty of the assessor of the city to prepare and furnish the list of jurors to serve as jurors from that city (see Laws of 1869, p. 432); and this legislation was entirely proper. It took the city out of the operation of the general statute in that regard. The learned counsel for respondent, however, refer us to the amendment of the general statute passed in 1881, which says: “The supervisor and township clerk of each township, and the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district, in any city, shall, at the time appointed by law for the review of the assessment roll for each year, make a list of persons to-serve as jurors," etc. (see Laws of 1881, p. 55);— And claim there is no conflict in these statutes; that the general law provides that it shall be done by the supervisor or assessor, and the charter fixes definitely which of these officers in Bast'Saginaw shall do it, but, this done, it then becomes his duty to act with the aider-men; and that the law requires that the list of jurymen made should be by the joint action of all of them. This, of course, would be a substantial repeal of the clause we have referred to in the charter of East Saginaw. I do not think such a repeal can be impliedly made. Neither do I think it was ever intended by the Legislature, or should be allowed to have that effect. It is not the rule that general statutes or acts repeal by implication special acts and chartered provisions in any such way. 1 Dill. Mun. Corp. § 87, and cases there cited. But, if it be conceded that it did -effect such repeal, it was afterwards repealed by an amendment to the charter in 1885, which re-enacted the old charter provision referred to. See Local Acts of 1885, p. 365, § 5. It may be' well contended that the statute invoked by respondent was never intended to apply to a city whose chartered provisions are like those contained in the East Saginaw charter. By that charter the assessor is a city -officer, and assesses all the property of the city, and ■comes more or less in contact with all persons therein having the qualifications of jurors; while in cities incorporated under the general law .the person assessing is but a ward officer, not acting beyond the limits of his ward; and such was the case in Detroit when the statute was first passed, in 1839. See Laws of 1839, Act No. 35, §§ 4, 5. We might further say there seem to be a peculiar fitness and special circumstances why the assessing officer ■of either township or ward or city should make the list, which is to be made from the names contained upon the assessment roll for the preceding year. The assessor is the custodian of that roll, and, haying made it himself, he should be peculiarly qualified for the work required by the statute. I think the first position of respondent’s counsel cannot be sustained. We now come to the objection made by respondent’s ■counsel’ under the second section of Howell’s Statutes referred to, being 7556, and which reads as follows: “ Such lists shall contain not less than one for every one hundred inhabitants of such township or ward, computing according to the last preceding census, and haying regard to the population of the county, so that the whole number of jurors selected in the county shall amount at least to one hundred, and not exceeding four hundred, one-half of whom shall be designated as petit jurors, and one-half as grand jurors.” It is claimed by them that the facts contained in the third and fourth paragraphs of the challenge show, that the statute was entirely disregarded, and they strongly intimate as their view that the statute cannot be applied to Saginaw county, with its present population, and they suggest that the difficulty can only be remedied by the Legislature. The particular fault claimed is that the whole number of jurors to be raised in all the townships- and cities in the county must not exceed 400, one-half of whom should be designated as petit and the other half as grand jurors; that the limitation of this number, and the-proper designation of those returned, have been utterly disregarded by the township and city officers; that in some instances one half of those returned were not designated as petit and the other half as grand jurors. An examination of the section of the statute discloses-that at no time is the number of the jurors to be returned on the lists to be less than 100 or more than 400, and one-half are to be returned as grand and the other half as petit jurors; and it further provides that the lists shall contain not less than one juror for every 100 inhabitants there shall be in the township or ward. Of course, no-serious question can arise until the population of a county exceeds 40,000; and, inasmuch as the number to be listed and returned must never exceed 400, I think it-quite apparent that after that time the ratio of population to the juror -must necessarily be increased. For instance, when the population of a county shall number 80,000, the ratio will necessarily’be one juror to every 200 inhabitants. I see no difficulty in construing the section in this manner, and thereby the obvious intention of the-Legislature will be thus attained, and the embarrassment claimed will be removed. But the statute provides for listing and returning but 200 petit jurors; and the present case shows that 376-names were returned as petit jurors, and 216 as grand jurors; that the total excess of jurors returned from the-county was 192, and in the number returned there was an excess as petit jurors of 176. There is no pretense but that the men whose names were listed and returned all have the qualifications of jurors. There is no difference in the qualifications of grand and petit jurors, and all were listed and returned by tbe. proper officers. ¥e need not consider the case of grand jurors, as it is only with the number of petit jurors returned that the parties in the case are interested. And the question raised is, does the excess stated constitute such an irregularity, and so far prejudice the suitors, as to furnish good ground for the challenge made? I think it does. It is clear that a plain violation of the law has occurred, and it is impossible for the Court to know or say that the parties will not be prejudiced thereby. It is its duty to require a compliance with the law in all cases when it is not plainly manifest no injury or prejudice can come to the parties by reason of noncompliance. In this case we cannot know this. If a less number had been returned than the law requires, the-case would have been different. In that case each person returned would not have been a legal juror. I think the case comes clearly within the principles first above stated. In regard to the number of jurors returned from the several townships mentioned in the challenge, the law was not complied with; and in this case the excess of the quota from each township, and its effect, for the reasons above given, apply with equal force to them. Had the number of petit jurors, with those mentioned from the townships named, in all not exceeded the lawful number, another and different case would have been presented, and upon which no opinion herein is expressed. It may be, however, proper to say that the returning officers should never return more namés for either grand or petit jurors than the law requires; but the full number which the population of a town or ward entitles it. to should be listed and forwarded to the clerk, as required by the statute. 'While, however, it is proper that the-jury-list should not exceed the statutory number, there would be considerable public inconvenience in holding that. this cannot be rectified. Such mistakes are often made; and, if they should be held to invalidate the jury-lists entirely, the business of the courts may be seriously delayed, and the interests of both civil and criminal litigation would be jeopardized. Where all the persons enrolled are competent jurymen, there cannot be any legal presumption that one is more fit than another. The lists may be corrected by striking off all names listed below the requisite number first appearing. All beyond those was improperly returned. A mandamus will therefore issue directing the circuit judge to vacate the order complained of, and he will direct the’ clerk to strike from such excessive lists the ngmes as suggested, to sufficiently reduce them to the number lawfully authorized to be returned; and this will be held to be the duty of the court in all like cases. The other Justices concurred.

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Carr, C. J. In the latter part of 1954 the owners of certain lands in Delta township, Eaton county, subdivided and platted the property, which is referred to in the record before us as Huntington Acres Subdivisions Nos. 1, 2, and 3. In connection with the proceeding a so-called agreement and declaration of restrictions was prepared by said owners, duly executed, and recorded in the office of the register of deeds of the county. Among other, provisions was the following: “A purchaser of any lot in Huntington Acres Subdivision No. 1, No. 2, or No. 3 agrees by such purchase for himself, his heirs and assigns to share proportionately with all other property owners in the cost of any improvements in his respective subdivision agreed to by the owners of a majority of the lots in his respective subdivision. For the purpose of voting on any proposed improvements, the holders of executory land contracts while in possession of said property shall be deemed to be the owners of said lot and entitled to cast the vote to which the lot is entitled. In other instances the holder of the record title shall be entitled to cast the vote of the lot.” The plaintiff herein, Burton-Jones Development, Inc., was organized in 1957 for the purpose, among others, of developing Huntington Acres subdivisions. Its president was Leland R. McElmnrry who was the owner of 50% of the issued stock of the corporation. At the time McElmurry owned 27 of the 45 lots contained in Huntington Acres Subdivision No. 1. It was his desire as the owner of a majority of the lots to cause improvements to be made therein involving the installation of storm sewers in certain streets so as to permit said thoroughfares to be “blacktopped.” The record before us discloses that the improvement by blacktopping said streets necessitated drainage. Representatives of McElmurry contacted other lot owners in Huntington Acres Subdivision No. 1, discussing the matter of blacktopping certain streets and the necessity for a storm sewer in connection therewith. Some lot owners favored the project and agreed to share the costs of the storm sewer, while others were unwilling to do so. It does not appear that any formal meeting of lot owners was held. The owner of the majority of the lots in the subdivision, McElmurry, decided that storm sewers should be installed. To that end the subdivision developer, plaintiff herein, entered into a construction contract with the Millett Excavating Company by which the work was undertaken and completed in June, 1957, at a total cost of $48,087.78. The drainage tile were placed in the center of dedicated streets on which the lots owned by defendants and appellants herein fronted. It is conceded that installation of storm sewers in Huntington Acres Subdivision No. 3 did not increase the cost of the project attributable to Huntington Acres Subdivision No. 1. The amount of the cost attributable to lots owned by McElmurry was paid by him. No claim is made that the total cost of the project was unreasonable;, nor that the method of prorating the -expense of the improvement was not proper. It further appears from the agreed statement of facts that the project was approved by the Eaton county drain commissioner, and that payment of the total cost was made by plaintiff. Demand was made npon appellants herein for payment of their prorated shares of the project based on a front foot apportionment of the total cost. Snit in equity was instituted against defendants Flake, which was later transferred to the law side of the court. Defendants filed answer and motion to dismiss, which motion was denied. Subsequently, following a pretrial hearing, the parties agreed that the action based on the covenant in the recorded declaration of restrictions, above quoted, should be tried in equity. In consequence, under date of December 10, 1959, plaintiff filed an amended bill of complaint joining as defendants other lot owners who had refused to make payment of their alleged shares of the cost of the improvement' on demand therefor. Such joinder was in accordance with the order of the court denying the motion to dismiss and directing that plaintiff’s cause of action, insofar as based on the covenant, should be determined in equity. Defendants filed answer to the amended bill of complaint denying the right of plaintiff to recover and challenging the propriety of the action taken. Ry way of affirmative defense it was alleged that the covenant could not be enforced because it was vague, indefinite, and ambiguous, that no meeting of lot owners was held for the purpose of voting on the matter, that the covenant lacked mutuality, and that it did not pertain to improvements of the character here involved. It was further claimed on behalf of defendants that the storm sewers should have been installed by the Eaton county drain commissioner. The controversy came to hearing before the circuit judge and proofs were offered by the respective parties. The circuit court reporter died before he had transcribed his notes of the testimony, and apparently it whs impossible for the parties to procure a transcript to be made by another reporter. In consequence, the factual questions, so far as such are involved in the case, have been incorporated in a statement of facts on which the parties are agreed except as to any reference or references being made to the Ingham county drain commissioner during the course of the proceedings. Counsel for defendants thought that such reference had been incorporated in their motion to dismiss which, presumably, was made orally in open court, but counsel for plaintiff disagreed. Notes made by the trial judge in the course of the proceeding failed to indicate that anything was said at any time with reference to a possible interest on the part of the Ingham county commissioner. As before noted, the subdivisions were located entirely in Eaton county. However, an intercounty drainage district had been established at a prior time, and the lands in question were within the boundaries of that district. At the conclusion of the proofs defendants renewed their previous motion to dismiss. Said motion was denied, and decree entered for the plaintiff sustaining the validity of the covenant contained in the agreement and declaration of restrictions as executed and recorded by the owners of the property in 1954. It was expressly found also that the cost of the improvement was reasonable, that it had been paid in full by plaintiff corporation, and that plaintiff was entitled to recover from the defendants the amounts apportioned on a frontage basis to their respective lots. It may be noted in this connection that the said agreement as made by the owners of the property declared that the provisions set forth therein should bind the land and that enforcement should be by means of an action in the circuit court of Eaton county in chancery. The decree provided also that the trial court would retain continuing jurisdiction to enforce liens for the charges made on the respective lots of defendants in the event that amounts found due were not paid. Prom the decree entered defendants have appealed, raising the following 3 questions : “1. Is this covenant unenforceable because of ambiguity?-? “2. Does this covenant authorize the majority owner of the lots ex parte to ‘vote’ to install a drain in a public highway without a noticed meeting and opportunity to be heard ? “3. If the covenant be construed as an agreement between the property owners to construct a drain in a public highway, is the agreement void because it violates public policy?” Appellants’ argument that the covenant on which plaintiff’s cause of action is based was and is unenforceable because of ambiguity is apparently based primarily on the claim that the covenant does not specify the “nature, extent, location and cost” of proposed improvements. It may be inferred that at the time the agreement and declaration of restrictions was executed by the owners of the property in 1954 they contemplated the necessity for improvements that would benefit the Huntington Acres subdivisions and promote their development in the future. That improvement of the streets traversing the property would have such a result is a logical conclusion, and we are concerned in this case with a project of that nature. It is, we think, a matter of common knowledge that parties interested in the development of subdivisions generally recognize the necessity of providing for improvements of the character here in question. Primarily we are not dealing with a matter of drainage but, rather, of the installation of storm sewers to take care of surface water to the end that dedicated streets might be blacktopped. Viewed from a realistic, standpoint the project which was accomplished under the contract made by plaintiff had for its ultimate object the improvement of the streets. It is significant that no attempt was made by anyone to prevent the carrying out of the contract. No claim is made that defendants were not fully advised with reference to the contemplated proceeding •or that they were misled or deceived in any respect. However, they elected to wait until the work was done and paid for, and then denied their liability to contribute to the cost in accordance with the covenant notwithstanding that they had acquired their lots in Huntington Acres Subdivision No. 1 “subsequent and subject to the aforesaid covenant,” as appears in the agreed statement of facts. We cannot agree with appellants’ claim that tiie covenant, which the trial judge properly held to run with the land, was or is ambiguous as applied in the instant case. Street improvements by subdividers in newly-platted property is common in practice. Provision for meeting payment of obligations so incurred is doubtless desirable. No claim is here made on behalf of any of the defendants that the existence of the covenant subject to which they made their respective purchases was not known to them. They could scarcely have failed to realize that the owner or owners of a majority of the lots in any of the subdivisions could bring about the making of an improvement that would operate to the benefit of all property therein. It will be noted that the covenant pursuant to which plaintiff claims the right to recover did not provide for a meeting of the lot owners for the purpose of discussing the desirability of a proposed improvement. It appears from the statement of facts that representatives of the plaintiff and of the owner of a majority of lots in subdivision No. 1 discussed the matter here involved with lot owners, some of whom approved the project and indicated their intention to pay their proportion of the cost. A formal meeting and the casting of votes thereat was not requisite to the proceeding, nor conld it in any conceivable way have affected the result. Appellants were charged with notice of their rights and obligations when they purchased their lots, and their possible failure to give due consideration to probable future action cannot be made the basis of equitable relief. We see nothing in the covenant here involved that may fairly be said to violate any recognized rule of public policy. As before pointed out, the installation of storm sewers for the disposal of surface water preceding the blacktopping of the streets in question was not primarily a drainage project instituted for the protection of the public health. The making of improvements of such character is not only beneficial to adjoining property owners but carries with it also a benefit to the traveling public generally. Such projects, as ordinarily carried on in new subdivisions, may not be said to be against public policy. Appellants assert in effect that the drain commissioner of the county, or perhaps of the 2 counties, Baton and Ingham, should have installed the storm sewers to prepare the streets in the subdivision for blacktopping. It appears affirmatively in the record that the drain commissioner of Eaton county approved the project here involved. It may not be assumed that the Ingham commissioner would have done otherwise had he been consulted. In any event, no one is asserting on behalf- of the public generally that the project as carried out under the contract made by plaintiff was detrimental to the public or violated any rule of public policy. We think the principle recognized in Kiley v. Bond, 114 Mich 447, cited by the trial judge in his opinion, is applicable here. It was there held: “The question whether the highway officers should be made parties to a proceeding to deepen and widen a drain located within the limits of a highway is not open to consideration in a suit by adjacent land owners to enjoin the prosecution of the work.” (Syllabus. 2.) Counsel for plaintiff have called attention to decisions from other States involving issues of the character raised by appellants herein. In Neponsit Property Owners’ Association, Inc., v. Emigrant Industrial Savings Bank, 278 NY 248 (15 NE2d 793, 118 ALR, 973), rehearing denied 278 NY 704 (16 NE2d 852), the plaintiff, being the owner of a tract of land, proceeded to develop it as a residential community and to convey lots to purchasers, said lots being described by reference to a filed map and to roads and streets shown thereon. Involved in the case was a covenant contained in the deeds to the purchasers of lots, providing that the property described should be subject to an annual charge in an amount fixed by the grantor or its successors and assigns, not exceeding, however, $4 per lot 20 x 100 feet. The amount so> paid was required to be devoted to the maintenance-of the “roads, paths, parks, beach, sewers, and such other public purposes as shall from time to time be determined by the party of the first part, its successors or assigns.” The covenant further granted the right to bring action to recover the charge so imposed and to enforce a lien therefor. In sustaining* the right of recovery the court held that the covenant was one running with the land, saying in part after a discussion of prior decisions (pp 259, 260): “Looking at the problem presented in this case from the same point of view and stressing the intent and substantial effect of the covenant rather than its form, it seems clear that the covenant may properly be said to touch and concern the land of the defendant and its burden should run with the land. True, it calls for payment of a sum of money to be expended for ‘public purposes’ upon land other than the land conveyed by Neponsit Realty Company to plaintiff’s predecessor in title. By that conveyance the grantee, however, obtained not only title to particular lots, but an easement or right of common enjoyment with other property owners in roads, beaches, public parks or spaces and improvements in the same tract. For full enjoyment in common by the defendant and other property owners of these easements or rights, the roads and public places must be maintained. In order that the burden of maintaining public improvements should rest upon the land benefited by the improvements, the grantor exacted from the grantee of the land with its appurtenant easement or right of enjoyment a covenant that the burden of paying the cost should be inseparably attached to the land which enjoys the benefit. It is plain that any distinction or definition which would exclude such a covenant from the classification of covenants which ‘touch’ or ‘concern’ the land would be based on form and not on substance.” An interesting case presenting a situation analogous in some respects to that in the controversy at bar is Stephens Company v. Lisk, 240 NC 289 (82 SE2d 99). The plaintiff in that case developed a tract of land referred to as Myers Park. Lots owned by the principal defendant were conveyed by the plaintiff by deeds containing a provision that if the grantor decided to grade, pave, or otherwise improve streets or sidewalks in or adjacent to block 80 in which defendant’s property was located, or to put in water or sewer lines or other improvements, the property conveyed should bear its part of the cost thereof on a frontage basis. It was specifically declared that such covenant should run with the land. In the spring of 1950 the plaintiff caused a certain street along block 80 to be graded and paved, and provided with water and sewer lines. Plaintiff made the improvement without consulting with or obtaining prior consent of the lot owners. The proportion of the cost chargeable against defendant’s property on a frontage basis was $513.79. Action was brought to recover such amount, reliance being placed on the covenant in question. The covenant was sustained and the court construed it as vesting in the grantor authority to cause the improvement to be made without reference to consent on the part of lot owners. It was held that the covenant was of such character as to run with the land. After disposing of the question of construction, the court commented (p 296): “Finally, it is not amiss to observe that the findings of fact fail to show (1) that defendants made any complaint when the Stephens Company was making* the improvements, or (2) that the amount of cost of the improvement sought to be recovered in this action is not the part of the cost allocable to the lots of defendants in accordance with the provisions of the covenant. Indeed it is agreed that it is the amount. Therefore no injustice appears.” The language quoted may well be applied to the situation in the case at bar. As before noted, defendants herein did not undertake to prevent the making of the improvement in the street adjacent to their property, and it is also conceded that the cost of the project was not excessive. In accord with the above decisions is the holding of the supreme court of Mississippi in Mendrop v. Harrell, 233. Miss 679 (103 So 2d 418, 68 ALR 2d 1013). There the covenant involved in the litigation, on the basis of which plaintiffs sought to recover costs of a street improvement, read as follows (p 684): “7. It is further understood and agreed that said Henry W. Harrell and his successors in title agree to bear all the expense required of them incidental to any street or sidewalk paving that may be done" in the future, adjacent to the property owned by said Henry W. Harrell, described in this instrument. “8. These covenants are to run with the land, and shall be binding on all parties and all persons claiming under them for a period of 25 years from the date these covenants and agreements are recorded, after which time said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of lot owners in Sylvan Flats Subdivision (and any additions thereto) has been recorded agreeing to change said covenants in whole or in part. “9. Enforcement shall be by proceeding at law in equity against any person or persons violating or attempting to violate any agreement, either to restrain violation or to recover damages.” All deeds of the lots in the subdivision involved in the case contained like provisions. After plaintiffs purchased the land in 1953 they installed water lines, curbs, gutters, and paved streets. Such improvements were made to enable purchasers of lots to •obtain loans insured by the Federal housing administration and the veterans administration. A like consideration was involved in the instant case. Defendant Harrell paid the paving costs on 4 lots but subsequently refused to reimburse for the cost of paving a street in front of 2 other lots that he had acquired. Thereupon plaintiffs filed actions to recover as to each of said lots, which cases were consolidated for trial. As in other cases of similar nature, the court held that the covenant ran with the land. In summarizing such conclusion it was said (p 690): ' “In brief, the covenant in the 1955 deed from Mendrop and Gay to Harrell is a valid, affirmative covenant running with the land, by which the land is burdened with an obligation to pay the expenses incidental to street paving which might be done. It is so related to the land as to enhance its value and confer a benefit upon it. It is also beneficial to the property and lots in the subdivision owned by appellants and by other property owners therein. “Moreover, we think that a fair construction of the covenant, in the light of the facts and circumstances existing at the time of its execution, and according to its terminology, show that the parties intended that the covenant include the expense or costs of the construction of street paving, and also curbs and gutters. The provision expressly refers to expenses 'incidental to any street or sidewalk paving that may be done in the future, adjacent to the property.’ ” Citing among other authorities Neponsit Property Owners’ Association, Inc., v. Emigrant Industrial Savings Bank, supra, the court concluded (p 689) that “covenants to pay part of the cost of making' or maintaining general improvements can be created to run with the land.” In accordance with its conclusions judgment was rendered in favor of the plaintiffs. We conclude that the trial judge correctly determined the issues presented on the record before him. The decree entered is affirmed, with costs to appellee. Dethmers, Kelly, Black, Kavanagh, and Otis M. Smith, JJ., concurred with Carr, C. J.

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Kavanagh, J. Plaintiff, a plumbing contractor, instituted this action in the Wayne circuit court to recover the balance due on work and materials furnished by plaintiff to Jared Builders, Inc., and the other defendants. The 3 individual defendants-were the sole incorporators, officers and directors of all the corporate defendants. These individual defendants, through the several corporations, engaged in the building business in the Wayne county area. Plaintiff’s claims are based upon transactions-entered into with Jared Builders, Inc., for the performance of services and the furnishing of labor and materials. Plaintiff’s claim as set forth in the amended declaration alleged that although the several corporations were incorporated as separate entities, they actually were in fact operated as the agents, instrumentalities, buffers, tools, and alter egos of the individual defendants, and they were actually started, organized, supervised, and controlled by said individual defendants as though they were their own individual enterprises; funds were intermingled; payments were made to materialmen and suppliers without regard to the corporation which-was actually obligated to perforin the function; advances and loans were made to the individuals by the corporations without corporate authority and to-suit the purpose of the individual defendants; new corporations were organized without payment of capital by the individuals who claimed to be stockholders. The suit attempted to obtain judgment against the individual defendants. It was stipulated that the amount due and owing by Jared Builders, Inc., was $3,100 plus interest from June 1957. The issue on the trial was whether the corporate veil of Jared Builders, Inc., could be pierced to hold liable, in addition to Jared Builders, Inc., the individual and other corporate defendants, jointly and severally. The trial court held the corporations were mere shams and that the record indicated not 1 of the corporations was operated as a legitimate corpo ration. Accordingly, the court rendered a judgment of $3,758.75 against all the defendants, jointly and severally. Defendants on appeal contend the trial court erred in disregarding the corporate status of Jared Builders, Inc., by holding the individual and other corporate defendants liable. Justice Bushnell, in Gledhill v. Fisher & Co., 272 Mich 353 (102 ALR 1042), stated the rule this way (pp 357, 358): “Before the corporate entity may be properly disregarded and the parent corporation held liable for the acts of its subsidiary, I believe it must be shown not only that undue domination and control was exercised by the parent corporation over the subsidiary, but also that this control was exercised in such a manner as to defraud and wrong the complainant, and that unjust loss or injury will be suffered by the complainant as the result of such domination unless the parent corporation be held liable.” Justice Butzel, writing for a unanimous court, in Herman v. Mobile Homes Corp., 317 Mich 233, 243, stated the rule as follows: “In determining whether the corporate entity should be disregarded and the parent company held liable on the contracts of its subsidiary because the latter served as a mere instrumentality or adjunct of the former, each case is su>i generis and must be decided in accordance with its own underlying facts. (Citing cases.)” In the case before us the trial court found: “That these corporations were all formed for the purpose of building, and as 1 of the witnesses testified; I believe Jared Schubiner, formed for the purpose of trying to limit liability and for tax purposes. There were about a dozen corporations formed. They all had common directors. They had 1 registered office. The capital stock was not paid in until profits were made. The corporations were not really-operated as corporations. They never held meetings. The minutes were not up to date. They all had the same registered agent and also they formed 4 partnerships. There was a constant interchange of funds among the corporations without any care as to the-corporate structure, and whenever the corporations-got in great financial difficulty they were bailed out, if they had to be bailed out, by another operation,, which is not a defendant here, the Elliott Travel Service, but which is one run by the 2 Schubiner brothers. “Now it appears to the court that these corporations were all agents of each other; that these corporations were manipulated by the individual defendants for the sole purpose of lining their own pockets and evading their responsibility whenever they could do so. They were used as shams. They were used in total disregard of the meaning of corporate entities. The corporate status and the corporate right was abused and they were nothing more than a mere-sham to allow the individuals to operate as much as they wanted to and in an effort to avoid the eventual day of reckoning. There is nothing in this record to indicate that any 1 of these corporations was operated as a legitimate corporation or operated in a manner such as to entitle this court to give it the privilege that a corporation is generally entitled to.” This is a law action tried before the court without a jury. We do not reverse in such a case unless the evidence clearly preponderates opposite to the finding of facts of the trial court. Sorel v. Crantz, 362 Mich 154. After a review of the record, appendix and briefs, we find that the evidence clearly preponderates in favor of the trial court’s findings. We conclude the trial court correctly held the plaintiff was entitled 'to a judgment against all of the defendants, jointly .and severally. The judgment against the corporate defendants having been subsequently set aside by the trial court by reason of their discharge in bankruptcy, the judgment of the lower court is affirmed as to the -other defendants jointly and severally. Plaintiff shall have costs. Carr, C. J., and Dethmers, Kelly, Black, Souris, ■■and Otis M. Smith, JJ., concurred. Adams, J., did not sit. See CL 1948, § 614.16 (Stat Aim 1959 Cum Supp § 27.825[1]).-— 'Repórter.

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Kavanagh, J. Relying on the so-called “civil damage act” (CL 1948,.§ 436.22, as amended by PA 1958, No 152 [Stat Ann.1959 Cum Supp § 18.993]) , plaintiff Ida Fletcher, widow, sued the defendant licensees for having caused the unlawful intoxication and subsequent death of her husband, Carl Fletcher. Ida Fletcher brought 4 other suits as guardian of each of her 4 children. All were consolidated for trial. ' The jury rendered a verdict against all of the defendants jointly in the sum of $4,200 in each case. Motion for new trial was made and denied by the "trial court, and only defendant Anise A. Flynn appeals. Since the questions are identical, all 5 suits will be referred to in this appeal as 1 item. The sole question on appeal is: 1 Was there any causal connection between the accident and the selling or serving of alcoholic liquor to deceased by appellant, contrary to the provisions of the statute ? At the time of the accident defendant-appellant Anise A. Flynn and defendant Alexander Suchorski were partners in a licensed class C bar, known as the “400 Bar.” Defendants Papa owned and operated a store licensed to sell liquor, beer and wine to be carried out and did business as “Bill and Rick’s Market.” The 400 Bar was located at 20731 John R street near 8 Mile road in the city of Hazel Park. Bill and Rick’s Market was located on Dequindre street at approximately 15-1/2 Mile road in the city of Warren. The pertinent facts are as follows: On Sunday, March 29,1959, early in the afternoon, Carl Fletcher, in the company of a man by the name of Armstrong and 2 women, drove to Bill and Rick’s Market, where they purchased a fifth of liquor. They consumed the liquor in their automobile. They again went in the market and purchased a second fifth, of liquor, and the 4 consumed this fifth. Carl Fletcher then went into the market and obtained a pint of liquor. Armstrong testified that as Carl Fletcher went in for the pint, he was unsteady on his feet. After consuming the pint, the’party drove back to the Fletcher home. Armstrong testified they didn’t stay long at the Fletcher home, but proceeded in Armstrong’s car to the 400 Bar, which was operated by appellant. During the trip from the Fletcher home to the 400 Bar, Fletcher produced another pint of liquor. Armstrong testified he didn’t know whether this was entirely drunk by the timé" they came to the 400 Bar. He did testify, however; that at this point Fletcher was staggering and so were the women. On arrival at the 400 Bar, one of the women bought a round of drinks, consisting of 4 bottles of beer, which the 4 of them consumed. Shortly thereafter Armstrong left the table and upon his return found 4 more bottles of beer and some wine on the table. Armstrong didn’t know whether Fletcher finished his second bottle of beer. Armstrong and one of the women left the 400 Bar at this time. He didn’t know what time it was, but guessed it was after 8 o’clock in the evening. The next we hear about Carl Fletcher is when he arrived on foot, alone, at the home of Raymond Krause at about 8:30 p. m. The Krause home is located in Hazel Park about 3 blocks north and a half block west of the 400 Bar. Fletcher left the Krause home about 9:05 p.m., proceeding east toward John R street on foot. It was drizzling rain. Krause never saw him again. Krause testified Fletcher was very drunk when he was at his home. No one saw Carl Fletcher after he left the Krause home until he was struck by an automobile on John R street, about 20 to 25 feet south of the intersection of Woodside, in the city of Madison Heights. The- only account of the accident was given by the driver, of the. car that struck Fletcher. The driver testified concerning the accident as follows: On the night of March 29, 1959, he was driving his 1957. Chevrolet car north on John R street. His wife and 3' children were with him. He was driving at 45 miles p.er hour. He could see as much as 3/4 of a mile or more ahead, and although it was drizzling rain he had his lights on and his windshield wipers operating, so that nothing prevented him- from seeing the-, rb.adway in front of him. He testified that no cars passed his car going in either direction for approximately 2 to 4 minutes prior to the accident. He testified that when he first saw Carl Fletcher in the roadway he was right on top of him and Fletcher was coming directly at him. He swerved to the left partially on, to the other half of the highway, but his right front fender struck Fletcher. . Two .police officers were following the car. Officer Liiiville testified he saw the car swing abruptly to the.left;, that there were no skid marks from the car ánd the exact point of impact could not be determined. The record discloses it was a cold, rainy, drizzly night and.that Fletcher had on a dark or black jacket and a pair of blue jeans. It was about 10:45 p.m., when the accident occurred. Fletcher was found on the right shoulder of the road. Fletcher was removed to a hospital in Royal Oak, where he subsequently died. The police officers testified there was a strong odor of alcohol on Fletcher. An autopsy was performed on the body of Carl Fletcher and a sample of blood removed and sent to the State laboratory at Lansing for examination, and analysis. The State laboratory chemist and toxicologist analyzed the blood and testified it contained .15% alcohol and that such a contént would' put a person under the influence of alcohol. The toxicologist also testified that in his opinion the level of alcohol in Fletcher’s blood had been reduced considerably by the time the blood sample had been taken due to blood transfusions given Fletcher on admission to the hospital. Appellant contends there is no showing of any causal connection between the accident and the selling or serving of alcoholic liquor by the appellant to the decedent. Appellant relies on the case of Bryant v. Athans, 362 Mich 17, where, in a per curiam opinion, this Court said (p 18): “Plaintiff made a prima facie case of violation of the statute with proof that defendant’s employees continued to serve intoxicating liquor tó her husband, after he became intoxicated. She proved that her husband left defendant’s bar, intoxicated,-' about 10 o’clock i-n-the evening of October 14,1954. From this point there is a .hiatus in the proof. The decedent’s mangled body-was found, about'9 'o’clock-the next morning, in the tunnel of tíre New York Central Railroad ('extending under the Detroit river frpm- Detroit to •'Wdiidsor'). The question is whether-there is proof,' or permissible inference-from proof, -upon which the jury legally coiild have' found' Gausal connection between the statutory violation and the-- decedent’s, mortal injuries. ■ . . ■ , “For want-of pro'of that decedent ‘ could have-traveled, while intoxicated, from.- defendant’s bar.to th’e place where his- body, was found;-for want of proof -that the. decedent’s, injuries were -sustained prior to wearing off of his intoxicated-condition, and for want of proof from, which it might fairly ,be inferred that foul'play or other superseding cause did not intervene, we conclude that the cause-of injury’ and death' in this case was conjectural and that' the trial judge was right in ordering 'a verdict for defendant.” ’ The instant case differs materially from the case of Bryant v. Athans, supra. The record here discloses the drinking of unbelievably excessive amounts of liquor by Fletcher. The body was “posted,” samples of blood taken and the analysis admitted in evidence. The question of its admissibility is not here on appeal. The time of death was established. The driver of the car that hit decedent testified Fletcher was coming right at him. Might not the jury, knowing how much liquor Fletcher had consumed, infer he was still intoxicated from the fact he was walking right at the car? All of these facts distinguished the instant case from that of Bryant v. Athans, supra. In Butrick v. Snyder, 236 Mich 300, 305, this Court said: “While it is true that a verdict may not rest upon bare conjecture (Fuller v. Ann Arbor Railroad Co., 141 Mich 66 [18 Am Neg Rep 489]), it is also true that a finding as to a particular fact may be based upon inferences fairly drawn from other facts established by proof. Waidelich v. Andros, 182 Mich 374. The burden was on the plaintiff to prove that the dynamite caps were left in the tool shed by defendant’s employees. If unable to furnish positive evidence of this fact, he might establish it by circumstantial proof of such a nature as would create a probability sufficiently strong to lead the jury to conclude that such was the fact. Dunbar v. McGill, 64 Mich 676. The reasonable inferences which may be drawn from the affirmative facts proven are evidence, and not presumptions.” See, also, the discussion in Firemen’s Insurance Co. v. Sterling Coal Co., 348 Mich 564. An examination of the record discloses to us that there were sufficient facts and permissible inferences from facts from which the jury could conclude there was a causal connection between the accident ■which, struck down Carl Fletcher and the selling or serving of alcoholic liquor to Fletcher by appellant, contrary to the statute. See Wadsworth v. New York Life Insurance Co., 349 Mich 240. On the record before us it may not be said that the determination reached by the jury was contrary to the preponderance of the evidence. Under such circumstances, this Court does not reverse. In re Granville Estate, 345 Mich 495; Meyers v. Fort, 344 Mich 312. The verdicts and judgments are affirmed. Plaintiffs shall have costs. Carr, C. J., and Dethmers, Kelly, Black, Souris,, Otis M. Smith, and Adams, JJ., concurred. CL 1948, § 436.22, as amended by PA 1958, No 152 (Stat Ann 1959 Cum Supp § 18.993) reads in part as-follows: “Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means qf support or otherwise by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to' any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the/ person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and -in any action provided for' .in this section, the plaintiff shall have the right to recover aetual and exemplary damages in such sum not less than $50 in each case as the court or jury may determine: Provided, That no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In ease of the death of either party,' the action or right of action given in this section shall survive to or against his or her exeeutor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife, parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife, parent or ehild, shall be his or her sole and separate property. Sueh damages together with the costs of suit shall be recovered in an action of trespass on the ease Before any court of 'competent jurisdiction and in any case where the parent shall be entitled to añy.such damages, either the father or mother may sue alone therefor, but recovery by 1 of such parties shall-be a bar to suit-brought-by. the other.” ■ •

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Morse, J. This suit was brought to recover damages for false imprisonment and assault and battery upon the plaintiff, alleged to have taken place on the night of August 6, 1885. Eice, at the time, was sheriff of Allegan county, and Fenn was night-watch of the village of Allegan. The arrest , occurred in the township of Monterey, in that county. Upon the trial it appeared that Fenn was requested by the sheriff to aid him in the arrest, and did nothing except as ordered by the sheriff. The chief indignity complained of was the handcuffing of plaintiff. Fenn put the handcuffs upon him by direction of the sheriff, who had in his charge at the time one Zeigler, who was arrested at the same time and place as the, plaintiff. ^The court instructed the jury that if Fenn knew that Eice was sheriff, and acted in obedience to his orders, and only upon his orders, in what he did touching the arrest, he would be justified in so doing, even though the acts of Eice were without authority, and their verdict, as to Fenn, should be no cause of action. “ Under the laws of this State, a private citizen is bound, upon the order of the sheriff, to assist in the arrest, and he is not authorized to wait to ascertain the authority of the officer before acting; and unless his act in itself is in some way wanton, and beyond what he is required to do, and thereby a trespass is committed, he will not be liable, and for that reason I give you this request.” The jury rendered a verdict in favor of both defendants. [The plaintiff alleges error in the charge of the court as above given. There was no error in this direction. It is admitted that Fenn did nothing in wantonness. or in njalice. He went to the house of Zeigler, where the arrest was made, at the request of the sheriff, and while there, under his direction, placed handcuffs upon plaintiff, and rode beside him in a buggy to Allegan. The ■court would have been warranted in directing a verdict in Fenn’s favor. The sheriff is authorized to call upon citizens to aid him in apprehending or securing any person for felony or breach of the peace (How. Stat. § 591); and, if any person so required to assist the sheriff neglect or refuse to ■do so, he is liable to punishment by fine or imprisonment (How. Stat. § 9250). We do not think that' a man called upon by the sheriff is required, at his peril, to ascertain whether the sheriff has a proper warrant, or whether the offense charged ■against the- person to be arrested is a felony, or that he may refuse to act until he is satisfied that the sheriff is acting legally, or within the scope of his office, in a criminal case. If he were allowed to do this, the object of the law would be defeated, and the statute rendered nugatory in many cases. There is often no time for inquiry, as action must be immediate. The necessity of the case will not. permit the person thus summoned to stop to examine papers, or take counsel as to the legality of the process in the officer’s hands, or to inquire whether any process is necessary in the particular case where his aid is required. .Therefore the person who responds to the call of one whom he knows to be an officer is protected by the call from being sued for rendering the requisite assistance. The officer may not be acting legally,' and therefore a trespasser;.but the person assisting him, at his request or command, and who relies upon his official character and call, is protected by the law, and must necessarily be, against suits for trespass and false imprisonment, if in his acts he confines himself to the order and direction of the sheriff. McMahan v. Green, 34 Vt. 69; Reed v. Rice, 2 J. J. Marsh. 44. The plaintiff and Zeigler were arrested for the commission of a statutory offense, under section 9168, How. Stat., which reads as follows: “Every person who shall willfully and maliciously break down, injure, remove, or destroy any dam, reservoir, canal, or trench, or any gate, flume, flash-boards, or other appurtenances thereof, or,any levee or structure for the purpose of conveying water to any such dam or reservoir, or any of the wheels, mill-gear, or machinery of any mill, or shall willfully or wantonly, without color of right,' draw off the water contained in any mill-pond, reservoir, canal, or trench, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year." The sheriff had a warrant against Zeigler, but none against the plaintiff. It is claimed by the counsel for the plaintiff that this statutory crime is not a felony, but a misdemeanor, and the circuit judge was requested to so instruct the jury, and to further direct them that, therefore, the arrest of plaintiff was unwarranted and illegal, as no lawful arrest could be made without process. The court refused to comply with this request, and charged the jury that the offense was a felony under the laws of this State. Under the statute and the previous decisions of this Court, we think that whenever a statute punishes an offense by imprisonment in the State prison, unless it is expressly declared by the statute to be a misdemeanor, such offense must be considered and treated as a felony, as regards the right of an officer to arrest without process. See How. Stat. § 9430; People v. Brigham, 2 Mich. 550; Shannon v. People, 5 Id. 71; People v. Bristol, 23 Id. 118; People v. Sweeney, 55 Id. 589 (22 N. W. Rep. 50); Drennan v. People, 10 Id. 169; People v. Donald, 48 Id. 493 (12 N. W. Rep. 669). The counsel for the plaintiff also claim that the sheriff, under the circumstances, had no right to handcuff the prisoners; that the same was an unnecessary indignity and an outrage; and that the plaintiff, by reason of riding handcuffed in a buggy for several miles over a rough and jolting road in the night-time, received injuries to his health and person, from which he suffered for a long space of time. And they complain of the charge of the court in this respect. The court was requested to direct the jury as follows: “If you find, from the evidence in this case, that the defendants put handcuffs on the plaintiff, and compelled him to go a long distance with them on, and that plaintiff in no way attempted to escape when arrested, and offered no resistance at any time, then I charge you that defendants would be guilty of assault and battery on the plaintiff, and would be liable to him for such an amount in damages as, under all the circumstances of this case, the plaintiff ought to recover. “When a person is arrested for the commission of a supposed crime, and is taken and held for trial or examination, as the case may be, the prisoner ought to be used with the utmost humanity, and at the time -of arrest, and during his being taken to prison, should not be fettered or handcuffed, nor subjected to any other hardships than such as are absolutely necessary for the purpose of safe-keeping and confinement under the arrest; and an officer is not justified in handcuffing a prisoner unless he is unruly, or attempts to escape, or is a notoriously bad character, or does something indicating a necessity on the part of the officer to restrain him by handcuffing. “ That the evidence in this case does not disclose any necessity for the handcuffing of the plaintiff, as it was done.” ' These requests were refused, and the court, in relation to this claim of the plaintiff, instructed the jury in the languag’e following: “Now, while an officer is bound to treat his prisoner with such kindness and humanity as may be consistent with security, and will not be warranted in employing any harsh- or unnecessary restraint, yet it is his duty to use such reasonable precautions as the case requires to prevent escape, especially in arrest for felony, or offenses of magnitude. His action, in this regard, is to be considered in the light of all the circumstances of the particular case bearing upon the question of what means are reasonably necessary to keep his prisoner secure. “I do not think, gentlemen of the jury, in this case, under the undisputed circumstances surrounding this arrest, as shown by the evidence, you would be warranted in holding the defendant Eice liable for any damages in this action, solely upon the grounds that the handcuffs were placed upon the plaintiff by his direction, and kept there until the jail was reached, unless you find that this was ordered without any view to prevent the escape of the plaintiff, or keep him in safe custody. “ If it was a wanton act, and done without any view to secure the plaintiff or prevent his escape, the defendant Eice would be liable for the damages resulting from the placing and continuing of the handcuffs upon the plaintiff.” The question of probable cause for this arrest was properly submitted to the jury, and from the undisputed facts of the case we are of the opinion that the sheriff was justified in arresting the plaintiff. It was represented to the sheriff by one William Dumont and his brother John, ■ who came to Allegan, and waked Eice up in the night, that the dam of the said John Dumont had been cut that night, and that the Dumont brothers had tracked two persons directly from the spot where the dam was opened to the house of John Zeigler. The Dumonts were old citizens' of Allegan county, and there was no reason why the sheriff should doubt the truth of the representations made by them; and a warrant was procured by John Dumont against Zeigler, and also directed against another as an unknown person. Hpon reaching the house, they found Zeigler and Fire stone in bed. The wet boots of Zeigler and the shoes of plaintiff were found at the house, and measured byDumont, who claimed that they corresponded exactly with the tracks. The pantaloons of both parties were wet around the bottom of the legs, and a spade was found inside the kitchen door, which appeared to have been recently used. The lower part of this spade was wet and clean, but upon the upper part of the blade sand was sticking, which Dumont informed Rice was in appearance like the sand of which his dam was constructed. Firestone was the only male occupant of the house-besides Zeigler, and there can be no reasonable claim, made, under these circumstances, that the officer did not have probable cause for taking him into custody. Having reasonable cause for making the arrest, the question arises, was the officer justified in handcuffing the parties?' We think the rule laid down by the circuit judge a. proper one. There must be some discretion reposed in a sheriff or other officer, making an arrest for felony, as to-the means taken to apprehend the supposed offender, and to keep him safe and secure after such apprehension. And this discretion cannot be passed upon by a court or jury unless it has been abused through malice or wantonness or a reckless indifference to the common dictates of humanity. It must be found that the officer was-unnecessarily rough and inhuman in his treatment of the person arrested, and without any view to prevent the. "escape of such person. It is, not necessary, as claimed by the plaintiff’s counsel, that the prisoner must be unruly, or attempt to escape, before he can be handcuffed, or do anything indicating a necessity for such restraint. Nor, in the event that he does nothing; at the time of the arrest, in the way of attempting to escape, or resisting the officer, is it necessary that he should be a notoriously bad character in, order to justify the tying of his • hands. There may be other and sufficient reasons, as it seems to me there were 'in this case, why such extreme measures should be resorted to in order to secure and safely lodge the prisoner. In this case there was evidence tending to show that the sheriff was informed that these men, Zeigler and Firestone, were " slippery ” and desperate men. He did not know either of them personally, and had no information, save what he received from the Dumonts that evening, as to their reputation and character in the community ; and he had no time to make inquiry. The arrest was made in the night, at a late hour,- under the supposition, if not made then, that the persons sought or at least the plaintiff, might escape apprehension altogether, or only be captured after much hunting and expense. The night was dark, and the country wooded. The parties had to be taken about 80 rods, along an old winding wood road, to the buggy, every foot of the way opening and inviting an opportunity to escape.' From there to Allegan was a night drive, with two officers and two prisoners. There was no evidence of any harshness upon the part of the sheriff or Fenn other than the placing of the handcuffs upon Zeigler and plaintiff. The plaintiff made no complaint at the time There is nowhere in the whole record a single instance tending to show malice or wantonness on the part of the sheriff. There is absolutely no evidence ^tending to show any ill will, or even a malevolent impulse, of the sheriff towards plaintiff or Zeigler. s It appears, from the testimony of the, sheriff, that, upon the same day of this arrest, -a prisoner had broken away from him in the day-time in the streets of Allegan, causing him some effort and trouble to recapture him. It is plainly apparent that in this case the sheriff put the handcuffs upon plaintiff for no other purpose than to prevent his escape, and that he had good reason to believe it was necessary to do so. That it turned out afterwards that the plaintiff was innocent of any offense, was neither a “slippery” nor desperate character, but an inoffensive and reputable citizen, and that he never had the remotest idea'of trying to escape, cannot alter the rule which saves the sheriff harmless from an act which appeared, at the time it was done, to be both necessary and reasonable. The arrest of an innocent man is an indignity hard to be borne, and the tying of his hands with cords or irons is something that makes the blood run chill to contemplate ; but both are indignities ofttimes without redress, and a necessary consequence of the due administration of justice in the suppression of crime. An officer is bound to act humanely, and cannot lightly and without reason either arrest or harshly treat a supposed offender, be ho innocent or guilty. It is, no doubt, true that petty officers, too often unduly inflated by a too high conception of their office and authority, are inhuman and cruel in their treatment of suspected persons. Such conduct the law does not hesitate to punish. But to mulct the sheriff, under the circumstances of this case, in damages for handcuffing the plaintiff while conveying him, on a dark night, through the woods, to the village of Allegan, when he had good reason to suspect him to be guilty of a felony, and one likely to escape at the first opportunity, when it - was done neither in recklessness, wantonness, nor malice, would be to put in peril every officer of the law who, under like circumstances, was alert and vigilant in the performance of his duties in the arrest of supposed criminals. The hardened and skillful offender against the criminal laws is sometimes, and generally, the meekest when arrested, but his eye is open to every avenue of escape and to say that unless such person attempts to escape, resists arrest, or is known to the officer to be a notoriously bad character, he cannot be shackled for an hour or two, until he can be conveyed to a place of safety, is to lay down a rule which will make escapes easy, and place new obstacles in the way of the apprehension and .safe-keeping of offenders. The sheriff cannot stop, when the man is unknown to him, at the moment of arrest, to inquire into his character, or his intentions as to escape, or his guilt or innocence of the offense charged against him. His duty is to take him, to safely keep him, and to bring his body before a magistrate. If he does this without wantonness or malice, it is not for a jury to find that his precautions were useless and unnecessary in the light of after-acquired knowledge of the true character and intent of the accused,- and to punish the sheriff in damages for what honestly appeared to him at the time to be reasonable and right. Several assignments of error are made to the ruling of the trial judge upon matters of evidence, but we find no merit in any of them. The statements made to the sheriff by the Humont brothers, both before and at the time of the arrest, were material and competent, bearing upon the question of probable cause for making the arrest, and also upon the reasonableness of the act of the sheriff as to the use of the handcuffs. It was also proper for the sheriff' to testify that he believed such statements as bearing materially upon his good faith as to both of these matters. "We find no error in the record, and the judgment must be affirmed, with costs. The other Justices concurred.

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Campbell, J. The Attorney General filed his information in the nature of a bill in equity to restrain the city of Detroit from discontinuing the Central public market in that city. The court below, upon an answer not controverting anything material in the information, dismissed the bill, but we are not informed whether this was done for a supposed lack of authority in the Attorney General, or for want of equity. Both of those questions were argued. The Attorney General appeals. There can be no doubt of the right and duty of the Attorney General to intervene and prevent franchises of a public nature from usurpation or from destruction. That holding a public market is an important public franchise is an elementary principle of law. In Rex v. Marsden, 3 Burrows, 1812, it was doubted whether an information ought to be granted in favor of a private owner of such a franchise against usurpation by another private person, because there were other sufficient remedies; but it was recognized that the public interests might be protected by that process. And in Rex v. Starkey, 7 Adol. & E. 95, it was held an offense punishable criminally to remove a market to the detriment of the public, as it may be actionable to do so in some other cases. Ellis v. Bridgnorth, 15 C. B. (N. S.) 52. The nature of these public interests will be considered presently. There is no doubt of the right of the Attorney General to intervene. The remaining questions relate to the mischief that is sought to be prevented and redressed. The most convenient method of explaining this will be to give the legal history, — of which we must take judicial notice, — in connection with the facts which explain it. From the time of the hrst city charter in 1806 — and perhaps still earlier — there has never been a time when the city of Detroit has not been at least authorized, if not required, to maintain public markets. For a large part of this period the appointment or election of market clerks has been obligatory, from which we might be bound to infer, what this record shows, that one or more public markets existed from the earliest period. Prior to 1833 the public market place, which included also a market building, is known historically, and probably from various public uses to which it was put may be known judicially, as having been situated between Jefferson avenue and Detroit river, on Woodward avenue. At least one other market was described by territorial legislation, which need not now be referred to In 1833 — no doubt from the necessity of more space— the question of the location of the Central market was submitted to a vote of the citizens of Detroit at a regularly called citizens’ meeting. The selection of a location was between Woodward avenue, below where it then was, and Michigan Grand avenue (lately renamed Cadillac square), where it now is. Inasmuch as these streets are described in our statutes, we know that Woodward avenue was 80 feet narrower than Michigan Grand avenue, and it appears that the extent of the latter made much more room for a market than the other would have furnished. It was decided'at that meeting to have the market on Michigan Grand avenue. A building was erected, fronting on the Campus Martius, at the head of that avenue, for the combined' uses of a city hall and market, extending along the middle of the avenue originally about 100 feet. The lower story was used for meat-stalls. Vegetables were sold in an open building not much sheltered except by a roof extending back in the avenue from the brick building, and the country wagons for the sale of market products were gathered along the avenue for some distance further. In process of time the buildings, both open and closed, were carried along so as to occupy the central part of the avenue to Kandolph street, except as crossed by Bates street. In this way the whole of the avenue along its middle portion was made a market place, sometimes called the ££ City Hall Market/5 and sometimes the ££ Central Market.55 From the repeated litigation which has come into this Court, we may infer that it was to avoid vexation from adverse interests that in 1848 it was deemed desirable to formally vacate the middle 50 feet of Michigan Grand avenue through its entire length, and, in addition to action by the council, to obtain a condemnation under the right of eminent domain, and the jury of inquest rendered a verdict in favor of such vacating. From that time to the present the city has occupied and claimed the whole space by title in fee, and used it for market purposes. Whether the fee then really belonged to the city ceased to be a practical question after the lapse of time, which was sufficient to bar any adverse right. In Cooper v. Detroit, 42 Mich. 584 (4 N. W. Rep 262), when the city of Detroit proposed to build the Central market building referred to in the pleadings before us, as a part of the Central market system, it was claimed by the bordering land-owners, who desired to prevent it, that this long occupancy for market purposes was not proprietary, and was not, therefore, effective. But it was held by this Court that such an occupation was proprietary, and therefore protected by the statute of limitations. It was urged on the - argument of the present case that, when we declared the right to be proprietary, we in effect held that the city could do as it should choose to do with its property. But under the common law it was the general doctrine that no one could hold a market that did not own the freehold of the land, and, if the public have any rights in the matter, we think the fact of city ownership cannot be of any importance in limiting them. While there may be a great deal of property owned in fee by a city, and its rights may be proprietary, yet all these rights belong to the municipality as a public corporation; and it is by no means inconsistent with the title that there may be trusts or obligations in regard to them. It appears from the bill that in 1872 the city took down the brick buildings fronting on the Campus Martius, and left the whole space open from that place to Bates street. The whole strip from the Campus to the other end of the avenue had been, in 1848,' declared by the council to have been vacated for market purposes, and designated and set apart as a public market to be known as the “ City Hall Market." No attempt was ever made to put an end to that designation of uses, although it is quite possible that the delay in rebuilding may have been in part owing to a desire — such as is now manifested — to turn the market into something else. But the chief reason was, no doubt, the large expenditure for a new city hall in place of the old market building. In 1875 authority was obtained from the Legislature by special act to raise money for a new market building by borrowing money on market bonds. As the immediate occasion of a part of this complaint arises out of an alleged violation by the city of the conditions then imposed by the Legislature, it will be necessary to refer to it particularly. The act not only imposed condition on the loan, but also directed what use should be made of the building when completed. Laws of 1875 (Local), p. 537. By this statute the common council received authority to borrow not more than a hundred thousand dollars, on bonds pledging the faith of the city. These bonds were to be denominated “Central Public Market Stock of the City of Detroit.”' They were to be in sums not less than 1500 each, to bear not more than 7 per cent, interest, and not be sold at less than par. They were to be payable not more than 20 years from date, and their proceeds were to be credited to the “Central Public Market Fund” and— “ Applied exclusively to the purposes of erecting a Central public market in the city of Detroit.” The law further provided that “ the rents,1 fees, and profits derived from the said Central public market” shall be applied— 1. To payment of interest coupons, and to establish a sinking fund to provide for the payment of the bonds, for which purpose $5,000 should be annually invested in the said sinking fund. 2. To market expenses and repairs. 3. The bonds were to be made payable $5,000 in each year from issue, “ and the same shall be paid from the money provided for in said sinking fund.” The law then declared in regard to the use of the building that one story should be set apart as a free public hall and for city offices. In 1881 the law was so amended as to substitute court-rooms for the public hall. Law of April 21, 1881. No subsequent action has been taken by the State Legislature on the subject. There is no force in the suggestion that the new or amended charter contains room for a different financial scheme. The frequent and careless revision and re-enactment of charters for Detroit has led to a good deal of confusion, but it cannot be assumed that the re-enactment or modification of charter provisions is intended to affect special legislation outside of the charter without a very manifest indication of such an intent. This is especially true where such an interpretation would affect important rights, and diminish funds set apart for specific uses. Under this enabling act of 1875, the city built the new, building on the site of the old market building known as the “City Hall,” and issued bonds, of which between twenty and thirty thousand dollars have not yet matured, but have been purchased for the city, and placed in its general sinking fund. The city seems to have failed in its duty to keep up a separate market sinking fund. On March 6, 1888, the common council 'accepted a committee report, subsequently put into resolutions and ordinances, abolishing the Central market, vacating the market buildings and open spaces as used for market purposes, and directing the disuse for such purposes after July 1, 1888, and providing for the use of the new building for general city purposes. This is the action which the Attorney G-eneral has brought to our attention, and which he asks us to restrain and set aside. - * On the argument for the city an attempt was made to treat this building as the entire market, and to claim that it was insignificant for market purposes. And in the same line of argument it was insisted that for market purposes the income would be insignificant, and that; being the private property of the city, there was no reason why the city should not treat these sinking fund bonds as paid, and use the building as it chooses. The other property was referred to as having no part in this controversy, and as not protected. Whether the building stands alone or not, there can be no doubt that the law positively requires it to be paid for out of market revenues, and not by taxation. It may be true that the city would be obliged at maturity to pay the bonds at all events, whether receiving income enough or not. But it is equally true that it would be a fraud on the tax-payers, and a violation of the act of the Legislature, to relinquish the fund set apart for that purpose, which was made a trust fund, and charge its value as a general city charge. The power to pay these bonds by taxation was not meant to be granted unless the other means failed ; and if it should become necessary to resort to it, that necessity can only arise from the direct breach of duty of the council, which has no right to squander or throw away the public funds. The argument that the bonds are actually paid is fallacious. The city sinking fund is in law a fund which has value in securities, and the market bonds are as much property as if they were government bonds. They can only be exchanged for actual money equivalents. A cancellation of these bonds would be a withdrawal for market purposes of the same amount of funds belonging to other purposes. The fact that the city has not in fact kept the market sinking fund distinct can make no difference. It is bound to keep it untouched, and, if funds have been diverted, the city is bound to restore them where they belong. Until the Legislature shall see fit to provide otherwise, there can be no step taken to use the trust property for other purposes, without a direct violation of legal duty, and it cannot be allowed. It may be further noted that the Legislature has provided expressly for the occupation of the whole building, which would not have been done had there been any design of leaving the city liberty to use it at discretion. In the original act the upper stories were allowed to be used for a public hall and city offices. In 1881 the use was modified so as to substitute court-rooms for the hall. This, of itself, shows the city was intended to have no discretion about the market uses. But it is manifest that this building was not designed to be separated from its surroundings. It would be little, if any, short of absurdity to suppose that this legislation ■contemplated nothing more extensive than a small meat- shop. While that might in some cases be treated as a market, it would be a very narrow use of that word, and bn so small a scale would involve nothing of a real public character. It is probably true, as counsel suggested, that the entire range of stalls apart from their surroundings, would not rent for enough to justify the outlay in building. And it is also reasonably certain that they would not be of much public convenience. But this building was placed by the city, and was no doubt understood by the Legislature, as headquarters of a large existing public market, which would be somewhat imperfect without meat-stalls, while meat-stalls would be of little profit aside from the ordinary market customers. The city, until the recent action, has always kept them, identified, and they cannot be dealt with separately without violating good sense, as well as destroying the essentials of a public market. ■ It has already been suggested that a market is an important public franchise. Perhaps if the city had never kept up a market, there might be some doubt whether a court could by civil proceedings interfere to compel it. But the charter contains many provisions not suited to a city without markets, and requires some officers to be chosen who, in such a case, would have no duties. And the city has had the benefits of this franchise for three-fourths of a century, and continually acted under it. All franchises are given for the purpose of securing some advantage to the public, and, when once exercised,, the public have very generally a right to complain of their relinquishment; and reference has already been made to the criminal quality of a destruction of such public interests. Markets aré as old as civilization, and public market places have in many countries been identified with the-most important events in their history. The purpose of markets has always' been to secure to all persons the privileges and conveniences arising from a general concourse of . buyers and sellers. One main object is to enable producers to meet consumers of the usual necessaries of life directly, and -without the interference of middle-men. The charter of Detroit has always contained authority to prevent forestalling and regrating, and the city has always had ordinances on that subject, which have no place in the absence of market facilities. Freedom of access to farmers and gardeners and all'other persons having provisions and the like to sell, so that purchasers may get supplies directly from them, as well as find all the different varieties of supplies in the same place, is regarded as an important legal right which should not be interferred with. The other chief value of markets is the facility of regulation and inspection, which cannot exist very perfectly, if at all, where there is no central place '•of concourse for buying and selling. The acceptance of the franchise involves the duty of using it to the public welfare and utility; and, when the rights of the public have once become vested in such a franchise, something more than municipal caprice must exist to change or destroy it. In a market the producer of articles, however small in value, can find a chance to sell them for all that they are worth; and those whose products would not justify them in setting up places of business can have the same liberty of trading as any one else. The destruction of a market means the destruction of many of the small producers, who have no other means of gain or livelihood. Courts have nothing to do with the theories of economists. The law of the land has always favored, and probably always will favor, the protection of both buyers and sellers against such practices as will prevent' either from escaping the mischiefs of monopolizing provisions. Public markets have always served this purpose, when prope'rly managed;, and they are the only means' whereby small dealers in such articles can dispose of them to full advantage. This, as before stated, is legally recognized as such a public right that, when once vested, it cannot be capriciously destroyed. There are few cities in the United States that do not owe-much of their business prosperity, and much of their enterprise, to the energy and thrift of citizens who began, and have sometimes kept up their active career in the public markets. The city of Detroit is greatly indebted to men and women who have been connected with this very Central market. A large share of the magnificent endowment of Harper hospital came from the invested earnings of a vegetable stand there, where the keen, honest face of Nancy Martin was seen daily until age and infirmity withdrew it. In the case 'before us the law has expressly saved this-market from being meddled ,with until the bonds have all been paid in due course of maturity out of the sinking-fund set apart for them. The duty of maintaining the market out of the revenue not set apart for the sinking-fund is quite as explicit as the other. And the market contemplated to be kept up is the market as an entirety, and not the meat-shops, which form but a part of it. That a city may change the location of markets, where-it will not injuriously aifect public rights, is very generally accepted. That it cannot capriciously destroy them,, unless the charter gives distinct power to do so, seems to be a necessary inference from the general rules governing the use of franchises, which are seldom, and in cases of' public enjoyment are never, given as mere sources of revenue without regard to the public convenience. We are saved the necessity of considering these questions by the terms of the city charter, and by the law under which this market fund was authorized, and which created specific duties which appertain to the conditions of the- loan, as well as to tbe immunity of citizens from taxation to meet the payments on the loan, when it can be met out of the income of the market. . There is not very much American law on the subject of markets. Their general conditions have so generally remained unchanged that the old usages have been followed without controversy. There are few, if any, popular institutions so universally retained, and few -that have served a better purpose. The law, as found in the standard text-books and digests of the older authorities, stands practically unaltered in any feature of public utility. See Bac. Abr. “ Fairs and Markets Com. Dig. “ Markets f 1 Bl. Comm. 274; 3 Bl. Comm. 218 ; 2 Co. Inst. 220, c 31; Townend v. Woodruff, 5 Exch. 506 ; Toml. Law Diet. “ Market ;" Rex v. Burdett, 1 Ld. Raym. 149. Since the argument our attention has been called to a very recent decision in the case of Fazende v. City of Houston, 34 Fed. Rep. 95, in which the facts were almost literally identical with those before us, except that the suit was brought by a private bondholder ; and the court held as we hold, that the city could not change the use of the property, or divert the income of the fund. It does not appear, as no testimony has been taken, why the common eoiincil was induced to resort to the measures complained of. They involve a complete throwing away of valuable income yielding property, and a plain violation of the vital conditions imposed by the law authorizing the market loan. The Attorney General has only done his duty, and the mischief threatened must be stopped. The decree below must be reversed, with costs of both • corn’ts, and defendant must be enjoined from interrupting the use of the market property, or any part of it, or any of the buildings heretofore used for market. purposes, and directed to continue to maintain. the market as such, and collect and apply the income for the purposes required by the statute of 1875, as amended by the law of 1881, and in no other way. Sherwood, O. J., Champlin. and Morse, JJ., concurred. Long, J., did not sit.

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Campbell, J. Plaintiff sued and was allowed to recover on a written contract for building a bridge over Belle river,'purporting to be made with Patrick Kelley, commissioner of highways. The contract included the abutments or piers, the trestle-work and approaches, and the material. This contract, which was dated and approved by the town board July 24, 1883, provided for the completion of - the work by September 25, 1883, for $614. Any delay involved a forfeiture of $200, and made plaintiff liable for damages. The place where this bridge was to be built was on a newly-projected highway, at a not great distance from the old highway and bridge to be superseded. It would seem that the new highway was not worked, and was probably meant only to be used in case of the completion of the new bridge. When plaintiff got his work done, as he claimed, the town authorities refused to accept, and never did accept it. The bridge remained unused, and the access to it was not made available, until about midwinter, when the whole structure was swept out during a freshet. It was claimed, and the evidence tended strongly to show, that the work was not done properly, and that both material and workmanship were bad. ■ In the view we take of the case these questions need not be considered. There was never any acceptance or use of the bridge, and plaintiff’s rights, whatever they may have been, were under the alleged contract It appears from the record that the highway commissioner was anxious to have a bridge at the new location, and that he wanted to bring its cost within what he .supposed to be his power to expend, $1,000, out of which he had ■ already laid out a considerable sum, leaving a margin of only about the sum fixed in this contract. He talked the whole matter over with Mackey, who was informed what he wished 'to do, and for how much, and Mackey was entrusted with the drawing of specifications. There^ «pon bids were advertised for, and Mackey’s was $135 lower than any other, and $235 lower than the highest. His bid was accepted by the commissioner, and the contract was let without security. The law is positive that no such contract can be let without— “Good and sufficient security for the performance of the work.” How. Stat. § 1414. There is no doubt that the specifications, fairly considered, entitled the town to a well-made work of good materials, and bidders generally must have bid on that basis. It is shown quite plainly that Mackey measured the quality of his work and materials by the low price at which he contracted, and we doubt whether, if the contract had been valid, any recovery could be had on the facts. Since townships have been made liable for defective bridges, it would certainly be wrong for town officers to resort to cheap and poor work to avoid' expense, and if a bridge cannot be had within the general power of the •commissioner, it ought not to be built without procuring the necessary authority to raise money enough to build a •safe one. We are not authorized to impute fraud in fact to any of these parties, but no more effective means to enable fraud to be practiced could be found than such as appear here. Mackey was given exceptional facilities. He knew just how much money there was to expend, and made his specifications and bid accordingly. He seems to have felt justified in measuring the quality of his material by the standard of his pay. The other bidders had no knowledge of these things, and bid on what appeared upon the face of the papers. Had this bridge been accepted, and the acceptance been followed by some accident due to bad materials, the consequences to the township would have been 'unfortunate, and the lack of security would have involved direct loss. We have had occasion several times to hold that all persons dealing with public corporations are bound to make their contracts according to law, and will not be protected unless they do so. This case illustrates the necessity of such a rule. The doctrine was applied under the statute applying to townships, in Mackenzie v. Treasurer, 39 Mich. 554. It had already been held, in Detroit v. Paving Co., 36 Mich. 335, and in Detroit v. Robinson, 38 Mich. 108, that there could be no liability against a municipality upon contracts not made in conformity with the statutes. And in Niles Water Works v. City of Niles, 59 Mich. 311 (36 N. W. Rep. 535), the law was laid down strictly on the same principles. It is the only rule which can be relied on to prevent fraud and collusion. Contractors have ample means to protect themselves, and if a township can be held on implied contract, or estopped by the acts of its officers, when there is no valid contract, it would enable these persons to disregard the law entirely, and collude with their friends to do indirectly what, if directly done, would be a plain illegality. As the rule has been uniformly settled in this State, we- need not discuss it further. No better example to show its necessity could be found than appears in the record before us. No cause of action was made out, and there is no theory which could sustain the action. The judgment must be reversed, with costs of both courts. Sherwood, C. J., Champlin and Morse, - JJ., concurred. Long, J., did not sit.

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Campbell, J. This case, as presented in this Court, comes up to review the action of the circuit court for the county of Wayne, had on an appeal from commissioners on claims against the estate of Hiram M. Perrin, deceased. The circuit court directed a verdict for the estate. Judge Yerkes, the claimant, presented two items of claim before the commissioners. One was for the value of one-third of the southerly two and one-fifth acres of lot 48, Porter farm, Detroit, included in Id. M. Perrin’s subdivision of outlot 48, and part of outlot 49, George B. Porter farm. The other was for one-third of the proceeds of sale of certain lots included in said plat; being lots 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, and the lot lying south of said lot 26. The claims demanded, respectively, $3,000 :and $2,000, and interest; without specifying date or other •elements of the causes of action. The second item is the •only one urged. This claim was demurred to as not maintainable without showing and trying title. The circuit court allowed the claim to be tried. The statement in the claim filed throws no light whatever on the origin or nature of the claim. As far as it means anything, it means that Perrin had received $2,000 as the proceeds of the sale of one-third interest in the lots mentioned, belonging to Yerkes; but whether sold or received •as attorney, agent, or otherwise, the claim does not indicate. We do' not think any case Avas made which could go to the jury. Hpon the argument, the ground of the .•claim seems to have been, in substance, that, several years before 1861, Yerkes had an arrangement with one Frazer for an interest in this property; that by some .mutual arrangement it Avas bid off by Perrin, in February, 1861, on a sale in foreclosure proceedings, to which all these were parties; and that subsequently Yerkes paid Perrin his share of the money needed. This whole transaction is so shadowy as to convey from the papers in the cause no definite knowledge. But it is enough to say that Perrin’s purchase is now relied on as a source of title, and that it was on its face so made as to vest in Perrin an absolute title. The plat, which is also relied on, was made by Perrin alone, with his wife, immediately after the purchase. This being so, it came very clearly within the statute declaring no resulting trust to arise from the purchase in one person’s name at the expense of another; and such a title could only be made subject to rights in other persons, either by some executory contract, or some valid declaration of trust, either of which must have been entirely in writing, and signed by Perrin. There is no letter or other paper showing, or tending to show, the terms of any agreement whereby Perrin was to buy this property for the benefit of Yerkes, or on what terms. The only papers in the case which identify the property as in any way concerning Yerkes are certain letters, only one of. which contains anything like a ■definite description, and neither of which can, on the most liberal construction, be construed as a declaration of trust. On April 25, 1861, Perrin wrote to Yerkes as follows: “ Jas. Frazer has not paid to me anything more than was paid by Mr. Hawley on the Porter-street property since the sale, February 5. Will it be possible for you to pay for me at Mich. Ins. Bank the amount of money that will be required on your interest in said tract by the-fifth of next month? I have a note falling due then that must be paid somehow, and I cannot collect money here at present. Please answer this, directing to me at Ypsilanti, upon receipt.” The answer of Yerkes does not appear, except as it is-referred to in a letter from Perrin to him of May 2, as follows: “ Yours of April 29, directed to me at Ypsilanti, reached me at that place, saying that the money would be ready for me when called for. You have not yet informed me-to whom you would have the deed made. Another thing I have thought to be best, which is to have a divided interest, instead of an ‘undivided/ so that each can look after and dispose of and otherwise control his own. I have thought perhaps it would be as well for me, upon closing up all that I may do about passing titles to the parties that I purchased at chancery sale, to have all that I finally own in one patch. Perhaps if you and Frazer are interested in fixing, you and he may make some arrangement where each would be located on the tract, so-as to leave my interest in one lot or parcel. This, however, may or may not affect the payment of the money by you, as we can fix that satisfactorily afterwards, if my neck is not broken to pay my notes at bank, Will you please do me the favor to deposit the money in Mich. Ins. Co. Bank to credit of my account, that I may check for it to pay my note? And ¡Dlease write me how you will have the deed pass, or to whom it shall be made. As I now understand it, you will be entitled to a deed, in clearing up this thing, to one-third of the southerly two-acres, and one-fifth (2 1-5) of lot 48. I shall be willing* if it please you and Frazer, that you shall be located on the- extreme southerly portion of the tract, although that will perhaps be more valuable, as it will be a little nearer the city.” On May 6, 1861, Yerkes answered this letter, as follows r “ Your favor of May 2 was received by me this morning. I have waited all day to see Frazer, and make a last, effort on him; but find out to-night that he has been absent in the country for near a week. I will deposit to-morrow (I can’t get into bank to-night) $192, the amount of my share, to your credit, as you desire, and take your note for the amount, until I can find a purchaser. I will make this all right with you when I sen you. You understand that I am not purchasing, and the-reason therefor.” There are some more recent letters indicating that Yerkes had some interest in the property which may,possibly have been this, but- none showing what that interest was. It has been uniformly held in this State that the statutes are not complied with except by a contract or declaration of trust signed by the party, and needing nothing-outside of the papers to show the entire arrangement. It is manifest, from this correspondence, that Perrin’sletter of May 2 refers to some arrangement, • written or unwritten, whereby Yerkes and Frazer were, upon some-terms not mentioned, to have a third interest in a part of Perrin’s foreclosure purchase. It does not appear what the rights were as between Frazer and Yerkes, or how much money was to be paid by either or both of them irin clearing up this thing.” The letter in reply from Yerkes, while it mentions $192 as his share, does not propose to make it a payment, but as a loan to Perrin, which was to be rectified by subsequent arrangement, which does not appear. While it may be inferred, ,by guessing from circumstances and parol evidence, that Yerkes became in some way entitled to some interest, there is no writing, by way of contract, declaration, or otherwise, executed under Perrin's hand, and signed by him, whereby Yerkes is shown to have had a third or any other interest, or on what terms he was entitled to obtain it. This being so, no case was made out, and the court below properly charged the jury. The judgment must be affirmed. The other Justices concurred Counsel for appellant contended that no particular formality is required or necessary in the creation of a trust; that it may be by an express declaration, or by any informal memorandum; citing Bellamy v. Burrow, Cas. Talb. 97; Fisher v. Fields, 10 Johns. 495; Corse v. Leggett, 25 Barb. 389; Urann v. Coales, 109 Mass. 581; or by letters; citing Foster v. Hale, 3 Ves. Jr. 696; Montague v. Hayes, 10 Gray, 609; Kingsbury v. Burnside, 58 Ill. 310; Loring v. Palmer, 118 U. S. 321; or by a pamphlet; citing Barrell v. Joy, 16 Mass. 221; or a receipt; citing Faxon v. Falvey, 110 Mass. 392; or a deposition or affidavit; citing Pinney v. Fellows, 15 Vt. 525; or a recital in a bond; citing Gomez v. Bank, 4 Sandf. 102; or in a deed; citing Wright v. Douglass, 7 N. Y. 564; or an answer in chancery; citing Patton v. Chamberlain, 44 Mich. 5, and cases cited; in short, by any writing in which the fiduciary relation between the parties can be clearly read; citing Perry, Tr. § 82, and cases cited. Nor is it necessary that such letters, memoranda, or recital should be addressed to the beneficiary, or should have been intended when made to be evidence of the trust; citing Perry, Tr. § 82; Browne, Stat. Frauds, §§ 88, 109. Counsel for defendant cited Bumpus v. Bumpus, 53 Mich. 346;, Weare v. Linnell, 29 Id. 227; Linsley v. Sinclair, 24 Id. 382; Hooker v. Axford, 83 Id. 457; Groesbeck v. Seely, 13 Id. 329; Newton v. Sly, 15 Id. 396.

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Dethmers, J. Plaintiffs appeal from an order granting defendants’ motion to dismiss plaintiffs’ bill of complaint for failure to state a cause of action. Plaintiffs are property owners and residents of a rural area which their bill of complaint describes as being a residential, farm and farm residential vicinity, a pleasant and congenial neighborhood with attractive residences and a fine place in which to bring np children. Defendants also are property owners in that locality. This suit is brought to enjoin them from conducting an automobile wrecking and junking business on their property, as they are licensed by the secretary of State and have started to do. The pertinent portion of plaintiffs’ bill of complaint reads as follows: “14. That the said use of said premises constitutes a public and a private nuisance and that the intended further use of said premises will constitute a public nuisance and a private nuisance as follows: “A. That said automobiles are stored in full view of all passersby and neighbors and are and will be attractive to small children and that they will have broken glass, sharp edges, holes to trap small feet, afford havens and refuse that attract and harbor rats and mice; “B. That other wrecked automobiles and derelict and decomposing bodies will be constantly hauled to said premises and the trash and refuse therefrom will be hauled away from said premises; that the sight of said old, wrecked, discarded, dismantled, junked, beaten and mangled automobile bodies, in which people have died and been maimed, and the piles of junk, old metal, steel, iron, trash, upholstery, rubber tires, broken glass on said premises, and being hauled away therefrom will and cannot help but operate as a constant reminder of dirt, filth and death, and have a depressing and morbid effect upon the minds of the average and ordinary person in the community, and especially upon the minds of plaintiffs, their neighbors, families, guests, roomers and tenants and impair their nervous system and weaken their physical force and resistance and subject them to fear, dread, horror, annoyance, discomfort and distress; * # * “D. That there are 12 children under the age of 9 in the immediate vicinity of which 10 are of preschool age and of which 6 will share boundaries with the junk yard; that said children will be attracted to the derelict automobiles and the junk and to fires that occur and spring up on the premises as well to^ the acetylene torches, cutting and mechanical operation of a junk yard and auto dismantling and to the huge trucks used to haul away junk and bodies and to cranes and weights which at a future time may be used to break and smash the automobile bodies remaining after parts have been stripped and burned from them; that said operations are dangerous and children may be cut, hurt, mangled or killed as well as bitten by rats, mice, mosquitoes, dogs, cats and fleas, and the germs of disease that are harbored in said animals and vermin; “E. That it is necessary for junk yards and auto dismantling establishments to burn the upholstery, rubber, pasteboard and plastics that are attached, glued, cemented, riveted, sewn and stapled to automobile bodies as well as the tires and other inflammable parts of said bodies; that the burning of said bodies gives off rank, odiferous, obnoxious, harmful, sickening and searing fumes and gases filled with soot and carbon, that will blacken and stain washes, farm produce, plants, grass and lawns and contaminate the air of the countryside; that the cutting by acetylene to reach parts and separate them often causes fires where none are intended or wanted, burning the nests of vermin, gasoline fumes remaining' in the tanks, rubber, upholstery and plastics and other materials, sometimes causing grass fires and spreading to other automobile bodies leaning and located next to' the burning body; that gasoline in the fuel tanks explodes with a loud report; and danger to the 3/1" 63 J • “F. That the customers of an auto dismantling establishment as well as many of the employees are persons dealing in junk and filth and refuse seeking parts for junk cars they seek to repair and fix; that said persons are often derelicts, transients and undesirables, driving vehicles in disrepair that are noisy and without proper mufflers; that the trucks that haul away junk and broken bodies are old and dirty and disreputable, that said persons are and will be attracted to and employed in said establishment and frequent the neighborhood which is presently quiet, neat, clean and residential; that the plaintiffs will be afraid to have their children in their yards, unable to use their yards for picnics and their windows towards said yard; and will be unable to open them without admitting foul odors and stenches ; “G. That said place will give off foul odors and vapors of decaying rubber, rusting metal, mouldy and soggy upholstery, as well as rags and junk; that the piles of junk and waste metal and other items will contain other foul and odiferous items including the dead and decaying bodies of vermin containing the germs of disease; “H. That the cutting and smashing of bodies, the hammering of parts, the breaking of metal, the tearing and ripping of steel, the noise of huge trucks being piled with old metal and hauling it over the rough countryside; the dumping of wrecked auto bodies and piling and dismantling of them will disturb the vicinity interfering with the neighbors and the use of their property as well as their peace of mind; * * * “17. That the maintenance of a junk yard and auto dismantling operation in the midst of plaintiffs’ residences would jeopardize their health, would cause them to become depressed, would prevent them from enjoying their homes in peace, quiet and comfort, would impair the marketability of their properties and result in a depreciation of the value thereof, and in a diminution in the rental value thereof, would materially interfere with the plaintiffs’ use of their property, would cause great and irreparable injury.” At the hearing on motion for an order to show cause why a temporary injunction should not issue, some testimony was taken, limited to showing the character of the neighborhood. The motion to dismiss is supported by affidavits to the effect that de fendants are licensed by the secretary of State to-conduct an auto salvage business at that location, that their business operations in that connection, to-date, consist solely of preparing the premises for the intended purpose and the purchase of 4 used automobiles and parking them there, and that the area is. not essentially residential. No other testimony was. taken and the ease was never tried. The court’s opinion, in finding that the bill of complaint does not state a cause of action, contains the-following: “The bill is founded on the premise that an auto, salvage yard in this location will necessarily be an actionable nuisance and should therefore, be enjoined. * * * “Defendants’ motion to dismiss is based upon the-proposition that a lawful business should not be-enjoined unless and until an actionable nuisance-exists, that the bill alleges only anticipatory invasions of plaintiffs’ rights and should be dismissed as prematurely filed. * * * “Plaintiffs cite and rely on a line of authority which holds that a court may restrain and prevent the establishment of a lawful business in a strictly residential area, if such business will necessarily result in a nuisance. Barth v. Christian Psychopathic-Hospital Ass’n, 196 Mich 642; Saier v. Joy, 198 Mich 295 (LRA 1918A, 825); Birchard v. Board of Health of the City of Lansing, 204 Mich 284 (4 ALR 990). “Defendants rely on the rule that a court will not enjoin a lawful business on anticipatory allegations- and that such businesses should be regulated only and actual nuisances, arising from the operation of the business, enjoined. Plassey v. S. Lowenstein & Son, 330 Mich 525. “Both of the above lines of authority are good law if properly applied to the facts of the particular case. Northwest Home Owner’s Ass’n v. Detroit, 298 Mich 622. “The question before the court is whether the facts bring the case within the authorities cited by plaintiffs, or those cited by defendants. “Granting that an auto salvage yard is not the most desirable, it still is a legitimate business and not a nuisance per se. Perry Mount Park Cemetery Ass’n v. Netzel, 274 Mich 97. * * * * “It appears that the area is not strictly residential there being at least 5 commercial ventures in the immediate vicinity. The bulk of plaintiffs’ allegations are conclusions as to what plaintiffs believe will happen in the future. That plaintiffs’ counsel says they .are pleaded as facts does not make it so. “This court concludes that the bill of complaint 'does not state a cause of action. It does not appear that a nuisance must necessarily result from the ■operation of this business.” Prom the cited authorities and others it appears that equity will not enjoin an injury which is merely anticipated nor interfere where an apprehended nuisance is doubtful, contingent, conjectural or problematical. A bare possibility of nuisance or a mere fear or apprehension that injury will result is not ■enough. On the other hand, an injunction may issue to prevent a threatened or anticipated nuisance which will necessarily result from the contemplated act, where the nuisance is a practically certain or strongly probable result or a natural or inevitable consequence. The bill of complaint here is almost copied from the one that stood up in Saier v. Joy, 198 Mich 295 (LRA 1918A, 825). We quote from a syllabus in that case the following : “The maintenance of an undertaking establishment and morgue in a residential section of a city, although not a nuisance per se, may be enjoined by nearby apartment owners where it will cause depression to the normal person, lower his vitality, render him more susceptible to disease, and deprive his home of the comfort, repose and enjoyment to which he is entitled, and he will sustain substantial financial loss, because of the depreciation in value of his property, and there is a strong probability that he will be disturbed by noxious odors due to the use of formaldehyde in the summer months when the windows are-open.” To the same effect, from the syllabi in Rockenbach v. Apostle, 330 Mich 338: “Plaintiffs in suit to enjoin, as a nuisance, the establishment of a funeral home upon lots in blocks otherwise devoted to residential use held, to have-fully established by the great weight of the evidence-that such a place would have a depressing influence upon them and deprive them of the comfort and repose to which they are entitled in their nearby residences and that property values for residential purposes would be substantially depressed.” Syllabus-7. “It requires no expert opinion to reach the conclusion that a funeral home, as a constant reminder of death, has a depressing influence upon most people in view of the presence of funerals, hearses, coffins,, the keeping of dead bodies on the premises, the comings and goings of bereaved persons; it being unnecessary to show danger from disease or unpleasantness of odors arising from such business in order to enjoin it.” Syllabus 8. Proof of allegations in plaintiffs’ bill of complaint here as to the depressing effect of wrecked automobiles and the junk yard in a residential area would, seem to bring the case within the spirit of the tests set forth in the quoted syllabi language in Saier and in Rockenbach. It is evident from what the trial court said above-that it was holding that defendants’ business was a legitimate one and that as such it may not, under the-cited authorities, be enjoined as a nuisance by way of anticipation, except in a strictly residential area. The court then found that the area is not strictly residential and, hence, that an anticipatory nuisance there' may not be enjoined. It was required, how-over, for purposes of the motion, that the well-plead-ed allegations of the bill be. accepted as true. It .alleges that the immediate vicinity of defendants’ premises is residential, with some light commercial .activity some distance away. Accepting this as true, under the trial court’s apparent view of the law, the motion to dismiss should not have been granted. In Township of Garfield v. Young, 348 Mich 337, a suit to enjoin operation of a junk yard, this Court :said (p 342): “The question in each case is one of fact, and in ■each case we must consider the facts peculiar to that particular case.” Here plaintiffs never had a chance to try their case and to prove what they alleged are the facts as to the character of the neighborhood and the harmful incidents'and effects of the car salvaging business which must necessarily follow from its operation. In Culy v. Upham, 135 Mich 131 (106 Am St Rep 388), and Crocker v. Crocker, 362 Mich 6, this Court commented on the necessity for a record, such as usually is.available only after full trial, setting forth testimony and proofs sufficient to enable this Court to decide, de novo, all the issues essential to proper disposition of the case on the merits. That is lacking here. We think the case should be tried and proofs submitted such as will enable the trial court, and this one on appeal, to determine the character of the neighborhood in question, and the effects that operation of the contemplated business in all probability will have on it and those residing therein. The bill of complaint is sufficient to warrant this. Whether a full or partial injunction, or any at all, should follow may then he determined in accord with what the facts indicate. Reversed and remanded for trial. Costs to plaintiffs. Carr, C. J., and Kelly, Black, Kavanagh, Souris* Otis M. Smith, and Adams, JJ., concurred.

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Sherwood, C. J. This action was brought by the complainant to foreclose what purports to be a mortgage given by the defendants Watson to the Scranton & Watson Lumber Company, which is represented by the complainant, covering seven lots on Second street, in the city of Detroit. All the defendants, except the Watsons, are subsequent purchasers or incumbrancers. The bill is the ordinary foreclosure bill, with, the usual averments where filed by a receiver. All the defendants appeared and answered the complainant’s bill. Joseph E. Watson and wife, the makers of the alleged mortgage, filed their joint answer, in which they deny all indebtedness to the Scranton & Watson Lumber Company, and deny making the mortgage in question; and they neither admit nor deny that the complainant was appointed receiver of the Scranton & Watson Lumber Company, as claimed in the bill. And they further say and aver that no sum of money is due from them upon said mortgage, and that said mortgage is fraudulent, without consideration, and void. And the defendants, further answering, give the history of said mortgage in their own language, as follows: “ On the 31st day of May, A. D. 1886, said Joseph E. Watson, and Ida M. Watson, his wife, executed, and partly filled out, a mortgage blank, of the form in'ordinary use, and known as the c short form" mortgage blank, with nothing written in said blank excepting the said date, their names and -residence, as parties of the first part, c Scranton & Watson Lumber Company, of the same place, a corporation," as party of the second part, *ten thous- and dollars ($10,000)" as the consideration, and the description of the premises, as hereinbefore described; that the provisions and conditions of payment were left wholly in blank; that said consideration of $10,000 was written in said mortgage only for the purpose of mentioning some amount for a consideration, and not at all because said Watson was indebted to said Scranton & Watson Lumber Company in that amount, or in any amount whatsoever. “That said Joseph E. Watson was, at the time of executing said mortgage blank, a member of said Scranton & Watson Lumber Company, and had also theretofore been a member of the Stoopel Lumber Company, and he-was giving and taking credit with various parties in large-amounts; that at the time of the execution of said mortgage blank, as aforesaid, it was understood and agreed by and between said Joseph E. Watson and said Ida M. Watson and James P. Scranton, of the Scranton & Watson Lumber Company, acting for said company, that said Joseph E. Watson and Ida M. Watson should execute said mortgage blank, as aforesaid, and if said Joseph E. Watson should thereafter become indebted or obligated to said Scranton & Watson Lumber Company for money or credit thereafter-furnished him by said company, and he should, after contracting such indebtedness, become insolvent, the said Joseph E. Watson would prefer the said Scranton & Watson Lumber Company, by completing and filling out said mortgage blank, by writing therein the amount to be paid to said Scranton & Watson Lumber Company to discharge the obligation of the said mortgage, which should be the amount of the debt thereafter contracted by said Watson to said company, and by delivering said mortgage, so filled out and completed, to said company. “ That, after the said execution of said mortgage blank by said Joseph E. Watson and said Ida M. Watson, the- said Joseph E. Watson did not contract any debt or obligation to said company; that neither the said Joseph E. Watson nor the said Ida M. Watson ever filled out said mortgage blank, or authorized said Scranton or any other person to fill it out, or consented to have it filled out, or had any knowledge whatever of its being filled out, until they learned of its having been filled out and recorded; that said mortgage blank, signed and executed as aforesaid, was left by said Watson in care of said Scranton & Watson Lumber Company, of which said Watson was then a member, but was never delivered to said 'Scranton or to said company. “That on, to wit, the 15th day of June, A. D. 1886, in the absence of said Watson, and without the authority, direction, consent, or knowledge of said Joseph E. Watson or said Ida M. Watson, the said James P. Scranton took said mortgage blank, executed as aforesaid, and wrote or caused to be written therein the provision, obligation, and condition of payment referred to in said bill of complaint,, and as follows, to wit: ‘All liabilities which they may have contracted or incurred for said Joseph E. Watson, as sureties, indorser or indorsers, or any book-accounts, or choses in action, or any unlicjuidated amounts, due from said Joseph E. Watson to said Scranton & Watson Lumber Company, now due or to grow due/ and the subsequent parts of said mortgage blank, in accordance with said conditions of payment. “ That after filling out said mortgage blank, by writing or causing to be, written therein the amount and conditions of payment as aforesaid, the said James P. Scranton, for the said Scranton So Watson Lumber Company, on the 16th day of June, A. D. 1886, caused the same to be recorded in the office of the register of deeds for said county of Wayne." Defendants further say that the premises described in the mortgage constituted their homestead at the time the said blank mortgage was executed, and at the time it was so filled out and recorded by the • plaintiff; and that Mrs. Watson signed the blank when she did upon the express agreement that it was not to secure any present or then existing obligation of her husband; that there was no understanding or agreement whatever that the blank mortgage should ever be filled out or delivered or used in any manner whatever, and no credit or money was ever advanced or furnished to either of the makers when the blank was signed, or when it was filled out and recorded, which was fraudulently done, without the consent or knowledge, and contrary to the agreement, of the defendants. Defendant William C. Stoepel answers, and, upon information and belief, states,. in Substance, the same facts as are contained in the answer of Mr. and Mrs. Watson, and, in addition thereto, says that on September 17, 1886, he purchased the premises described in the complaint, of defendants Watson, in good faith, paying therefor full value, not taking into consideration said mortgage, because of its alleged invalidity, and received therefor a warranty deed; and that he still owns the title thereto.. He also claims the benefit of a cross-bill, .and asks, that the mortgage be declared to be void, and an order that the same be delivered up to be canceled. The defendants Lynch and Margaret Donaldson filed their joint and several answer. The Lynches claim to have a lien by virtue of an execution levy upon the property, upon a judgment rendered in their favor for the sum of $141.91 damages, and $29.15 costs, against the said Joseph E. Watson. Margaret Donaldson says, in said answer, she claims a lien against said property for the sum of $399.51; being the amount of a judgment rendered against Joseph E. Watson, and which is now levied upon said property by virtue of an execution issued upon said judgment. These defendants all deny the validity of the mortgage; aver that it was never executed and delivered to the lumber company, and was fraudulently made and recorded. They also claim the benefit of a cross-bill, and pray that said mortgage may be declared void, and that it may be removed from record. The cause was heard before Judge Jennison, upon pleadings and proofs, a part of which were taken in open court, who on December 31, 1887, made the following decree: “ This cause coming on to be heard upon the pleadings and depositions of Joseph E. Watson and Ida M. Watson, and upon proofs taken in open court, and Hoyt Post having been heard in favor of said complainant, and Charles K. Latham having been heard in favor of said defendant Stoepel, E. W. Pendleton in favor of said defendants Joseph E. Watson and Ida M. Watson, and Alfred E. Lucking in favor of said defendants Lynch and Donaldson, and it appearing to the court that said complainant has not, by preponderance of proof, showed what authority was given complainant to have the mortgage filled up after it was executed and delivered, and that parol authority would not be sufficient for that purpose, it is ordered, adjudged, and decreed that the bill of complaiñ't in said cause be, and the same is hereby, dismissed, with costs.”. On leave (being duly granted by the circuit court, the complainant took an appeal to this Court. We have examined the record in this case carefully, and we are satisfied the learned circuit judge came to the correct. conclusion, and that the mortgage must be held void, for the reason that it was never executed and delivered by the Watsons containing the material provisions it now does. When the alleged mortgage was delivered by Watson to the Scranton & Watson Lumber Company, if it ever was delivered, it is conceded it contained no conditions. And the defense in the case is that the conditions in the mortgage were .left blank when it was signed, and that those now appearing in the mortgage were written in afterwards, and without authority of the makers. Watson and his wife were both sworn, and both say they gave no authority to any one to have the conditions put into-the mortgage; and we do not find from any source that Mrs. Watson ever gave any person authority to fill out the blanks. Watson says the design of the mortgage was to secure the company for any personal advances made to-him afterwards, provided his share of the profits did not equal the advances; and that the signed blank was left with Scranton personally in trust, and not to be used until h.e (Watson) should consent and direct; and Mrs., Watson testifies she so understood it, and signed it with such understanding. Scranton was sworn, and testified that Mr. Watson-handed him the paper, and told him to take it to Davock, and have him fill it out. (Davock was the notary who-took the acknowledgment.) Scranton took the paper to Davock, at his office, who filled in the conditions as Scranton dictated. Scranton says the mortgage was given to secure past as well as future indebtedness to the company. In stating what Mr. Watson authorized him to do,, he says, in substance, that he was authorized by Watson to take the mortgage to Davock, and have him write in the conditions, so worded as to cover all past and future-indebtedness and liabilities from Watson to the company,, says: “1 never saw Mrs. Watson with reference to this mortgage until after it had been filled up;” further says: “ Had no further conversation with Mr. or Mrs. Watson subsequent to the giving of this mortgage, with reference-to its validity.” Mr. Davock, in his testimony, says that he filled out the condition of the mortgage as requested by Mr. Scranton; that the Watsons were not present, and he never had any authority from them to fill in the conditions; that the conditions that were afterwards filled in were not mentioned at the time the mortgage was executed. We have now given the names of all the witnesses who-can give or clo give ns any positive knowledge of the facts upon which the vital question in this case is raised, and as to these facts it will be noticed that Scranton and theWatsons are in direct conflict in their testimony. Was the change in the instrument, made after it was executed and delivered, with or by the authority of theWatsons? This is the only question of any importance in the case. It is not a question whether, if Mr. Scranton's testimony is to be believed, the parol authority which he swears to would be sufficient (which we think it would not, under our statute and the weight of authority); but did the makers of the blank mortgage give Mr. Scranton any authority at all to fill out the mortgage? If the testimony of the Watsons and the notary is to be credited, they never gave any such authority. We think the preponderance of the testimony is clearly with the Watsons, and that the decree must be affirmed, with' costs. • The other Justices concurred.

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Long, J. The defendant is.a corporation owning and operating the Big Rapids Branch of the Chicago & West Michigan Railway, running through the • unincorporated village of Alleyton, where defendant has a station on its said road. Said railroad is crossed, at that point, by a single highway only, and said station-house- is situated immediately at said crossing, and there are no fences or cattle-guards at that point, and no fences on either side of the railroad for a long distance either way from'said highway crossing. This action was brought in justice’s court of Newaygo county to recover damages for the negligence of the defendant in killing a cow of the plaintiff. On the trial before the justice, the plaintiff obtained a judgment for $30 damages, and the justice taxed plaintiff’s costs at the sum of $30.06, which included an attorney fee of $25. The cause was removed by the defendant, by certiorari, to the circuit court for said county,. and the following errors alleged in the affidavit for the writ: “ 1. That the testimony introduced on the trial of said cause did not show any cause of action in favor of said plaintiff, and against said defendant. “ 2. That no testimony was introduced in said cause tending to show any liability on the part of defendant, as set forth in plaintiff’s declaration in said cause. “3. That said justice erroneously included in the costs of said suit said attorney fee of $25.” This judgment was affirmed in the circuit court, and the cause removed to this Court by writ of error. The evidence taken before the justice is fully set forth in his return-. On the trial the defendant admitted plaintiff was owner of the cow, and that it was killed by defendant’s cars, and that defendant was a corporation, doing business within this State. It was shown upon the trial that at the village of Alleyton, through which said railroad passes, the said railroad is practically unfenced for nearly two-thirds of a mile, and is without any cattle-guards along the whole distance ; that plaintiff’s cow got upon defendant’s right of way at a point somewhere within this unfenced portion of- defendant’s railway, when she was struck by defendant’s cars, and received the injury complained of. The statute requires such corporation to erect and maintain fences on each side of the right of way of its road, and prescribes the kind and height of the fence that shall be built, and that connecting fences and cattle-guards shall be constructed at all highway crossings, etc.; and until such fences and cattle-guards shall be duly constructed, the company or corporation owning or operating such road shall be liable for all damages done to cattle or ■other animals thereon, which may result from the neglect •of such company or corporation owning or operating such road to construct and maintain in repair such fences and cattle-guards aforesaid, to be recovered by the owner of such cattle, in a civil action, before any court of competent jurisdiction, together with an attorney fee of $25, to be taxed as costs against the defendant in case of a recovery in such action. The testimony given by the plaintiff shows that the ■station and highway crossing are so situated that said railway could be fenced along both sides of that portion of the line up to said highway, and cattle-guards put in and maintained at said crossing, without interference with the mutual convenience of the defendant and the public in transacting their business with each other, and there was no attempt on the part of the defendant to ■contradict the testimony on this point. We think there was sufficient evidence to warrant the giving of the judgment in the case. The other error alleged in the affidavit for the writ relates to the taxation of an attorney fee of $25 before the justice. This question was settled by this Court in Wilder v. Railway Co., 70 Mich. 382 (38 N. W. Rep. 289), in which it was held that no such attorney fee could be recovered; and this case must be ruled by it. It follows that the judgment of the circuit court must be reversed and set aside, and the judgment of the justice affirmed as to damages and costs, excepting as to the $25 attorney fee, which is reversed and vacated. Costs of this Court to defendant, and of the circuit court and the justice’s court to plaintiff, except such attorney fee. Champlin, Morse, and Campbell, JJ., concurred with Long, J. Sherwood, C. J. I concur in the result.

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Sherwood, C. J. This suit was an action of ejectment by the plaintiff, who owns property on the Lognon farm, against the defendants, who own property on the Wood- bridge farm, adjoining on the east. The G-alvins were the owners, and Hickey was their tenant, occupying the strip of land in dispute, the same being a parcel 12 feet in width and about 130 feet in length, lying in the city of Detroit. The declaration was in the usual form, and the plea the general issue. The plaintiff claims the strip was a part of the Lognon farm, and the defendants insist it was a part of the Wood-bridge farm. The plaintiff also .claimed that the defendants had moved their west fence from the dividing line between the two farms over on the Lognon farm at some time less than the period of 15 years before the plaintiff brought his suit. Upon the trial the plaintiff claimed to hold by adverse possession, under claim of title, and an acquiescence on the part of defendants and those under whom they claim. It was claimed by him that a certain fence east of the ditch on- said land was the line, as established by them, and the acquiescence of the parties and their grantors. On the contrary, the defendants insisted that the center of said ditch was the division line' between the parties' parcels of land. The suit was commenced November 25, 1879, and the trial of the cause was closed on November 20, 1887, and the defendants prevailed. The plaintiff brings error. The record shows that the cause has been tried five times. The question presented upon this trial was one of possession entirely as it went to the jury, and whether such possession was adverse in the plaintiff. J. Wilkie Moore was called to the stand by the plaintiff, and gave testimony in answer to plaintiff's questions that he was 73 years old, and had known the premises about 50 years,' and knew the Lognon farm, and knew of Lognon and the Spechts when they occupied the farm, and knew Got. Woodbridge when he lived on his farm, and saw the old fence between the two farms as early as 1835 or 1836; that the Spechts then claimed to own the Log-non farm, and occupied it as far east as the fence; and from the time he first knew the premises the Lognons and the Spechts occupied up to the fence, down to the time Beecher bought. On cross-examination by defendants’ counsel, he said he also knew of the ditch; that it was from five to seven feet wide; that it was there when he' first knew the premises; that he recollected talking with Gov. Woodbridge about the lines of the farms; that the ditch was on the west side of the fence; that there were three lines, — that is, there was a fence, a ditch, and a row of trees. Counsel then put the following question: “What will you say as to the ditch being the dividing line of occupation between the two farms?” This was objected to by plaintiff’s counsel as incompetent, and because— “It is not pretended that the witness has any knowledge of any survey or anything to show where the dividing line was.” The objection was overruled, and the witness was allowed to answer: “I supposed the ditch was aline; yet at the same time there was the fence, and the ditch, and the row of trees about five feet on Woodbridge lot, and the ditch the other way. I don’t know as this is proper, but I supposed the ditch was on the line, and the fence was put over.” Witness was then asked by counsel, for the defendants the following question: “You say the ditch was the line. It was generally supposed the ditch was the line, was it not?” This was objected to as— “ Incompetent under the theory of the plaintiff’s case as we have outlined it. It is immaterial where the line is. The question is whether they occupied up to the fence.” The objection was overruled, and the witness answered (the question being repeated in substance), “I think it was.” This testimony was incompetent. What the witness supposed was generally understood, or what he supposed or thought in the matter, was clearly inadmissible, and especially as it is quite apparent from all his testimony he knew nothing of the line whatever. This witness’ age and long acquaintance with the premises gave an importance before the jury to his testimony, which, in this particular instance, was entirely misleading, and undoubtedly prejudicial to the plaintiff’s case, if he had any, and the objections should have been sustained. The following question, put to William Woodbridge was clearly objectionable as calling for a conclusion, of a most mischievous tendency, viz.: “ What can you say as to the ditch being acquiesced in as the dividing line between the farms by the respective parties in interest? What can you say of the ditch being acquiesced in as the dividing line between the Woodbridge farm and the Lognon farm at the time the land was possessed by the Spechts, — Ferdinand, Victor, and Louis?” Witness answered: “Well, sir, it was tacitly consented to by all parties that the center of that ditch was the dividing line, for nobody ever obstructed it at all in any way. They never put up any fence down in the ditch.” All the questions relating to the subject of acquiescence put to this witness were objectionable on the ground stated, and the testimony was erroneously admitted. We find no other rulings of the court so far objectionable as to make a reversal necessary to correct them. Seven rulings of the court, relating to the charge and the requests to charge, remain to be considered. In regard to plaintiff’s first request, it was not a ease where the court should have directed a verdict for the jury, and the court did not err in declining so to do. The defendants, in their fifth request, asked the court to charge the jury as follows : “ If you believe the testimony of the Fitzpatricks, that the fence along the Galvin lot, along the Woodbridge orchard, was removed prior to the summer of 1864, then there can be no claim of adverse possession on the part of Luther Beecher alone, and defendants are entitled to a verdict.” The giving of this request was properly excepted to. It assumes that, unless land adversely occupied is inclosed by a fence, such possession and occupancy cannot ripen into a title by the lapse of time. Such, however, is not the law; there are other ways of holding possession of land besides inclosing it by a fence. We see no objection to the other requests of defendants’ counsel given by the court. The plaintiff’s counsel made request of the court to submit to the jury, to be answered specifically, the following questions: "1. Did not the Lognons, the Spechts, and Beecher, during their respective occupancy of the Lognon farm, occupy the same, each under a claim of title, openly, exclusively, adversely, notoriously, and hostile to any other person, up to the old farm fence; and did not each of them, respectively, acquiesce in that fence as the dividing line between the farms; and did not Gov. Woodbridge, during his occupancy of the Woodbridge farm, also thus occupy to the fence, and acquiesce in it as the dividing line? “2. Had not the old farm fence stood for many years along the west side of the Galvin lot, some five or six feet east of the place where the fence now stands, on the west side of said farm lot? “ 3. Was not this old farm fence along the west side of the Galvin lot moved by John Galvin and others for the defendants, in the summer of 1865, five or six feet further west, and to tbe place it now occupies; and was not such removal less than 15 years before November 25, 1879, wbicb was tbe date of tbe commencement of this suit? “4. Had not tbe occupation of tbe Spechts, tbe Lognons, and Beecher been continuous for more than twenty years before tbe Galvins removed tbe fence in tbe summer -of 1865?” Tbe court declined to submit tbe fourth question at all, and submitted tbe first, second, and third, with the following instructions: “Now, gentlemen, if your verdict should be for tbe plaintiff, then I direct you to' answer tbe first three questions submitted by plaintiff's counsel, — Nos. 1, 2, and 3. If you find against tbe plaintiff, then you want to designate your verdict on the special questions in accordance with tbe queries submitted.” We see no reason why these questions should not have been submitted; and it was not proper for tbe court to tell tbe jury what answers they should give to tbe questions, or either of them. Tbe object of tbe statute in allowing such specific questions to be submitted to tbe jury, and requiring them to make answer thereto, was to ascertain whether tbe jury bad, in making up their general verdict, properly applied tbe law, as given by. tbe court, to tbe facts in tbe case. Tbis can never be done if tbe jury are to be directed by the court what answer shall be made to each question asked,, in tbe event tbe general verdict is a certain way. Tbis direction by tbe court was error, and it was also error for the court to decline to require tbe jury to make answer to tbe plaintiff's questions so submitted when asked to do so by plaintiff’s counsel. Tbe following questions were submitted for specific answers by tbe jury by defendants' counsel, and were returned by tbe jury, answered as follows: “1. Is not tbe land in dispute on tbe Woodbridge farm? “A. Yes. Was not the center of the ditch acquiesced in by all the Spechts, and Lognons, and Woodbridge, as the dividing line? “A. Yes. “3. Have not the heirs of Governor Woodbridge, and the Galvins, occupied this land since the summer of 1864, and maintained an adverse possession? “A. Yes. “4. Di'd Mr. Beecher ever claim any title to this strip until the commencement of this suit in 1879 ? “i. No. "5. Has not the Galvin fence stood where it now is since 1865? “A.. Yes.” There was the same error committed by the court in telling the jury what answers to makp/if the general verdict was in favor of one or the other of the parties. Some objection was made to the submission of these questions and answers given, but we see no objection to them, and but for the errors pointed- out they would have been conclusive of the case in favor of defendants. The judgment must be reversed, and a new trial granted. Champlin, Morse, and Long, JJ., concurred. Campbell, J., did not sit. The instruction was as follows: “If you find for the defendants, you are to answer those questions in- the manner which the questions call for, — favorably, of course, to the defendants.”

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Kelly, J. A jury in the Berrien county circuit court awarded plaintiff $15,000 damages for injuries sustained as the result of plaintiff’s collision with defendant’s parked tractor and trailer. Defendant’s motion for judgment non obstante veredicto was granted by the trial court on the ground that plaintiff was guilty of negligence as a matter of law and that plaintiff’s negligence was a proximate cause of his injuries. Plaintiff, on November 14, 1958, at about 8 p.m.r was driving a 1954 Chevrolet north on North State street in the city of St. Joseph, Michigan. North State is a 2-lane, rough, uneven street, running north and south, and located in an industrial section of the city. Some 335 feet south of the point of the collision on State street, on the crest of a hill, are 2 sets of railroad tracks. Just north of the tracks, entering* from the east, is Camber road, which is a 2-lane, hard-top road, serving the city’s industries and their parking lots to the east. Some 300 feet north of the railroad tracks, and entering North State street from the east, is Graves street, which enters into the' Whirlpool parking area and deadends at the east side of North State street. There was no fixed curbing on the east side of North State street north of the railroad tracks for some 210 feet. North of the north side of Graves street is an open concrete surfaced area, used for unloading at a Whirlpool Corporation building and entered into» from North State street. Some time after 7 p.m., on November 14, 1958, 2 tractor-trailers owned by defendant came to North State street to unload their cargoes of steel at the Whirlpool dock.' The truck driven by Arthur Fitch unloaded first, and then backed out of the unloading bay onto North State street so the second trailer could unload. Fitch, after backing out, then parked iii a southerly direction directly facing oncoming traffic, approximately 1 to 2 feet from the east curb on North State street, just north of the Graves street 'intersection. Fitch then proceeded to assist the other driver unload, leaving his vehicle unattended, j There was conflicting testimony as to whether or not the tractor-trailer had its parking lights on. Officer Hahn testified he observed no lights on the truck when he saw it a few minutes after the collision. No witnesses actually observed the accident. The testimony of defendant’s witnesses was that the truck had its parking lights on at the time of collision (a clearance light at each side, 2 clearance lights on the top of the cab, and 2 clearance lights at the rear of the trailer). Defendant’s witness, Arthur Ludwig, a guard at Whirlpool plant number 1, testified he was making the round of his stations shortly before the accident and that he observed the parked truck with amber lights illumined on both sides of the top of the truck. On North State street, at the point of the accident, many signs were posted by the city of St. Joseph prohibiting parking on either side. Defendant admits violation of not only the parking ordinance of St. Joseph, but, also, of CLS 1956, § 257.674 (Stat Ann 1960 Rev § 9.2374), which makes parking unlawful where ail official sign prohibits same. Plaintiff, William F. Dismukes, testified that on the evening of November 14, 1958, at about 8 p.m., •he was returning to his home after a business trip to Benton Harbor; that his brakes and lights were operating properly, and that he had set his lights on “dims”; that he was driving 20 to 25 miles per hour and made observation as he approached the railroad tracks on North State street; that he did not see anything parked or located south of Graves street after passing over the tracks; that he had driven this route many times and as he crossed the tracks he made observation and could see outlines of the buildings on the north and south sides of Graves street; that he made observation at Camber road, the "Whirlpool parking lot entrance, and Graves street, and did not observe anything that might have been a truck parked on the east curb just north of Graves street intersection. Plaintiff further testified that he did not see anything as he crossed Grayes street on North State street and did not remember anything about the collision; that he was approaching the Graves street intersection and “the next thing I knew I was in the hospital.” On cross-examination plaintiff stated he had traveled this route many times during the past 3 years, both during the nighttime and the daytime. He indicated he would have been able to have stopped his car within a distance of 40 feet, traveling 25 miles per hour, but that he never saw defendant’s truck ahead of him; that he was traveling close to an imaginary curb line. On redirect examination plaintiff testified he had no memory of crossing Graves street on the night of the accident; that he had never seen a car or truck parked along the east side of North State street in any of the times he traveled it; and, on recross-examination, plaintiff stated he could see to the north line of Graves street, but nothing beyond that before the collision. Later in the trial plaintiff was recalled to the stand and testified on redirect examination that his memory fails ..of the accident approximately 10 to 12 feet south of the Graves street intersection. He testified he could see across the intersection, and possibly 8 or 10 feet beyond the intersection itself; that the intersection was 32 feet and that from this point where he lost his memory he could see a total of some 54 to 56 feet ahead of him, but did not see a truck parked on North State street. Plaintiff’s witness, Neil Berndt, city engineer, testified as follows: That there were posted “no parking” signs on both sides of North State street where the accident occurred; that there were 2 street lights from the railroad tracks to a point 400 feet north on North State street, but that there were no street lights on the east side of North State street. Officer Hahn testified that it was not a direct, head-on collision; that the “center of the hood of the automobile probably fell right on the line of the right side of the semi-tractor and trailer”; that he did not notice any lighting on the tractor when he arrived at the scene, and no flares were placed around the vehicle; that it was somewhat foggy that evening and a slight mist; that the road was pretty bumpy ; that the light on the Whirlpool building actually was intended to shine down on Graves street so that the plant guard could view all cars coming into Whirlpool on that street; that it illuminates very little of North State street at that point; that no skid marks were found; that earlier in the evening he saw a truck parked there without lights and had had difficulty seeing it; that in his experience of patrolling that area he had not observed trucks parked where this one was. William Ehrenberg, the wrecker operator, testified that when he approached the railroad tracks on North State street he did not observe anything •ahead; that the weather was foggy; that when ho ■arrived at the scene of the accident the truck was 1 to 1-1/2 feet away from the curb; that the light on the "Whirlpool building at the Graves intersection lights the street very little, if any; that when he drove over the railroad tracks he could only see the police car flasher. He also testified the point of impact was the right front of each vehicle. Additional testimony was introduced ■ that • the light on top of the Whirlpool building did not throw light on North State street where the accident occurred, but, rather threw a shadow in front of the building on North State street because the light hit the south side of the building, and plaintiff’s testimony showed that the intersection of Graves and North State streets was dark. We examine the record in the light most favorable to the plaintiff on an appeal from the trial court’s order granting defendant’s motion for judgment non. obstante veredicto. See Fitzpatrick v. Ritzenhein, 367 Mich 326. This Court in a recent decision, namely Barnebee v. Spence Brothers, 367 Mich 46, reiterated the well-established rule that proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in consideration of the evidence in each particular case. See, also, Prosser on Torts (2d), “Functions of Court and Jury,” § 50, p 281, and Tracy v. Rublein, 342 Mich 623. There was sufficient evidence from which the jury could have found the defendant’s negligence, by violating the “no parking” zone on North State street, contrary to CLS 1956, § 257.674 (Stat Ann 1960 Rev § 9.2374), on the night of the accident, was the proximate cause of plaintiff’s injuries. Berry v. Visser, 354 Mich 38. There remains the question whether plaintiff was guilty of contributory negligence as a matter of law, thereby precluding recovery from defendant. The trial court in its opinion determined plaintiff had a duty to observe defendant’s parked tractor-trailer and to stop within the assured clear distance ahead. No objections as to the trial court’s instructions are made by either plaintiff or defendant, and we may assume that the jury was properly instructed on all phases 'of the law applicable, including assured clear distance, and that the jury considered those instructions along with the evidence submitted. ■ This Court has repeatedly held that a reasonable construction must be placed upon the assured clear distance statute. Bard v. Baker, 283 Mich 337; Cookson v. Humphrey, 355 Mich 296; and Sun Oil Company v. Seamon, 349 Mich 387, where we stated (pp 411, 412): “The statute (assured clear distance) must be reasonably construed. A literal reading thereof would compel us to say that in every case of collision the statute has been violated by the mere fact of collision alone-. ' The driver has either been going too fast, or, if driving at a reasonable speed, has permitted his attention to wander and thus has not perceived. the .obstruction in time .to stop. Such literal interpretation would make the driver an insurer against' any collision in which he might become im volved. We cannot assume that the legislature intended '' such a result. The situations under which collisions occur are infinite in complexity and variety, and, to accomplish justice in particular cases, we have been forced to create a number of exceptions to the statutory edict.” No testimony was offered in re the last 80 feet that plaintiff’s car traveled, due to plaintiff’s claim of loss of memory caused by the accident. The question of loss of memory was not seriously challenged, and, under .the favorable-view principle,'must be accepted. In Rytkonen v. City of Wakefield, 364 Mich 86, we held that the defendant city was not entitled to a directed verdict on ground of contributory negligence as a matter of law on the part of plaintiffs decedent, a motorcyclist, whose'Vehicle collided with an unlighted street barricade on a stormy night, at 1:30 a.m., where there were no eyewitnesses to the accident, and we held such evidence presented a question of fact for jury as to contributory negligence of decedent. ■ The record presents a problem, for decision that could cause a trial judge, or a member of this Court, to conclude that if he had been a member of the jury he would have determined that plaintiffs negligence' precluded recovery. That, however, is not the privilege ■ or prerogative of either the trial court or this Court. .The peculiar nature of the street lighting;' the partial absence of curbing, the descent of a hill, the uneven -street surface, and the improperly and illegally parking of the truck, presented testimony from which the jury could have found, under the circumstange.s of this case, plaintiff was not guilty of violating. the assured clear distance statute and wás ént'itled to-reepver for the" damages he suffered. This case warranted a submission to the jury of the question.. of. proximate cause and contributory negligence, as. reasonable men could differ on the findings. ... The order of the lower court granting judgment non obstante veredicto is reversed, and the case, remanded for entry of judgment in accordance with the’ jury’s verdict. Plaintiff shall have costs. Carr, C. J., and Black, Kavanagh, Souris, Otis M. Smith, and Adams,'JJ'., concurred with Kelly, J. Dethmers, J., concurred in result. CLS 1956, § 257.627 (Stat Aim 1955 Cum Supp § 9.2327)-.

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Black, J. February 9,1961 plaintiff duly applied,, to the defendant city, for a permit authorizing construction of a “drive-in” restaurant on its recently purchased parcel of Detroit property. The parcel was then zoned B2, permitting such construction and' use. Some 3 weeks later the city notified plaintiff that the latter’s plans, submitted with the application, required certain corrections. The corrections were made. A week or so later the city’s building-department advised plaintiff that no permit would be issued; that a petition to rezone such parcel had just been filed per ordinance authorizing such a petition. The common council of the defendant city promptly resolved that a public hearing, upon the petition to rezone, be conducted April 7th next at 10 o’clock in the morning. March 31st plaintiff filed in circuit the instant petition for mandamus to compel issuance of the permit it had applied for. Hearing on order to-show cause was set for April 7th, at 2 in the afternoon. April 7th, at 10 in the morning, the resolved public hearing was held. It concluded, allegedly, with announcement that a decision would be made at the regular meeting of the council to be held April 11th. However, after plaintiff and its counsel left the hearing, the council again took up the matter and voted to amend — with immediate effect — the then-ordinance so as to prohibit plaintiff’s intended use of such parcel. That afternoon the circuit judge, being advised of the council’s action, adjourned hearing of the order to show cause. Thereafter defendants amended their answer to plaintiff’s said petition so* as to include the amendatory ordinance as a defense, to which amended answer plaintiff filed an amended reply. • The pleaded issues came to testimonial trial October 31, 1961, and resulted in judgment denying and dismissing plaintiff’s said petition. It reviews on granted leave. This case is a substantial duplicate of Willingham v. City of Dearborn, 359 Mich 7. There is a decisive difference, however. In Willingham the discretion •of the trial judge was inclined against permission to amend tarde the pretrial statement, also the defendant city’s answer, so as to include a defense manufactured by amendment of the city’s zoning ordinance after the property owner’s petition for mandamus had been filed. Here, the answering and replicating pleadings were duly amended so as to bring squarely before the court a like defense which, •at the time of filing of plaintiff’s petition for mandamus, was nonexistent. Further, in the present ■case, the subsequently prepared and unamended pretrial statement recites unqualified satisfaction — all .around — with such amended pleadings. The circuit court might well — of discretion and upon authority of Willingham — have done here what the same court did in Willingham. It did not do so, however, and so the presented questions are controlled by City of Lansing v. Dawley, 247 Mich 394. 'The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an •ordinance is enacted which validity bars what was lawfully authorized by the permit. Mandamus proceedings, even though filed and considered on the law side, are governed by equitable principles. The writ is one of grace, and does not issue to compel performance of what is shown on due pleading and proof to no longer be a clear legal duty. In this case the circuit court was duly faced with a “law,” brand new yet valid for its purpose, which "between the filing of plaintiff’s petition and hearing thereof came to enactment prohibitory of that which •plaintiff sought to compel. Since the grant or denial ■of a petition for mandamus is, as in equity (see Carlson v. Williams, 348 Mich 165, 168; Carlson v. Wyman, 189 Mich 402; and Palmer-Stevenson Construction Co. v. Mason Circuit Judge, 176 Mich 326), determinable according to germane conditions existing at the time of hearing and determination rather than at the time of institution of the proceeding, it must be held upon authority of the Dawley Case that the law in effect at the time of hearing and determination controlled plaintiff’s petition and called for denial of the writ as sought. Plaintiff’s remaining allegations of error have been duly considered. They are, respectively, that the amendatory ordinance was not validly enacted; that the action of the city “in preventing the issuance of a building permit * * * until the zoning ordinance could be changed” was invalid; that the amendatory ordinance by its terms is not “retroactive,” and that the ordinance as amended should be construed so as to exclude from its prohibitory purview any good faith previously intended use. We cannot agree with plaintiff’s contentions thus advanced. It follows that the circuit court’s judgment should be, and therefore is, affirmed. No costs. Carr, C. J., and Dethmers, Kelly, Kavanagh, Souris, and Otis M. Smith, JJ., concurred. Adams, J., did not sit.

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Adams, J. This is an appeal from an order modifying a divorce decree entered November 23, 1951. The parties had 2 children, a boy aged 3-1/2 and a girl aged 1. Custody of the boy went to defendant, of the girl to plaintiff. Defendant was required to pay $30 per month for his daughter’s support. ITe was earning $3,000 yearly. On April 8, 1960, plaintiff filed a petition for modification of the divorce decree to increase the daughter’s support. Plaintiff worked prior to March 15, 1960, but her job ended and she has no idea of returning to work. She has another child by a second marriage. Her husband is employed. She computed the cost of the daughter’s support at $111.72 per month. The amount is not disputed. She concedes it would cost the defendant an equal amount for the support of the boy. Defendant now has annual earnings of $6,641. He lives at home with his parents and has the following weekly expenses: Social security and retirement............ $ 7.46 Income tax............................. 18.71 Automobile purchase loan................ 18.50 Personal loan........................... 7.50 Mortgage loan.......................... 7.50 Life, health, and hospital insurance; medical and dental bills...................... 6.76 Pood and lodging....................... 40.00 Car insurance and operating expense...... 9.15 Clothing................................ 3.00 Dues, cabin expense and miscellaneous .... 2.11 $120.69 In addition, he has been paying $30 a month for his daughter’s support. He has been going in the red $3.73 per week. The chancellor said: “On the income that Mr. Williams has I think he can pay a little more than he is paying. Of course, I am taking into consideration that there were 2 children. He is supporting 1 of those children himself, and apparently doing a good job because there is no complaint about that. “But I believe * * * it could be increased to $10 per week. Now, I realize it costs more than that to bring up this girl, but there is no use of this court sitting up here and making an order that beginning as of the first week it is going to go way behind. “We have an itemization of expenses here. Whether they are right or wrong, I cannot find where there are too many that are out of line. And I am taking into consideration the fact that he is bringing up 1 of the children.” The court awarded an increase in the child support from $30 per month to $10 weekly. Plaintiff claims an abuse of discretion by the trial court. Plaintiff contends that from the date of the decree to the date of the order, there was an increase in the need of the child from $6.92 to $25.78 a week, or more than 272%; that over the same period, there was an increase in defendant’s income from $57.69 a week to $127.71 a week, .or more than 221%; and that the lower court’s order for child support was only from $6.92 a week to $10 a week, or 44-1/2% increase. Plaintiff also claims that defendant’s expenses could be reduced. The matter has been submitted to us upon an agreed summary of testimony which is 2-1/2 printed pages in length. We are furnished with approximately 1 page of narrative as to testimony of plaintiff and 1-1/2 pages of narrative as to testimony of defendant. Upon the basis of this record, we are asked to findan abuse of discretion by the trial court. We are unable to do so. Perhaps defendant can, or could, cut down on his present expenditures. Perhaps defendant could eliminate the ownership of an automobile or of the cabin property. Perhaps defendant, who is a schoolteacher, could supplement his present income by additional employment during-summer vacations, or otherwise. Perhaps the debts which defendant has incurred were needlessly incurred. Perhaps the amount paid by defendant to his parents for food and lodging is too much? Too little? The record does not answer these or other questions that come to mind. Upon a sparsity of facts we are asked to lay down some sort of empirical method of fixing support so that “members of the bar can predetermine, within a few dollars, what a court will say about child support.” . Under these circumstánces, we can only reiterate once again what we said in Spalding v. Spalding, 355 Mich. 382, 384: “We have held repeatedly, and we again hold, that we will not interfere with the discretion of the trial chancellor in these cases unless a clear abuse thereof is manifest in the result reached below. The kind of determination before us requires a weighing of human and economic factors of the utmost complexity, a weighing that can best be accomplished at the local le'vel, not in these chambers. In view of the frequency with which cases are reaching this Court assailing the exercise of a trial court’s discretion as an abuse thereof, we deem it pertinent to make certain observations with respect thereto in the interests of saving expense to the litigants and avoiding delay in reaching final adjudication on the merits. Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must bé so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made.” The decision of the chancellor is affirmed. No costs. Carr, C. J., and Dethmers, Kelly, Black, Kavanagh, Souris, and Otis M. Smith, JJ., concurred.

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Dethmers, J. This is a chancery action, filed under the so-called Dodge act (PA 1921, No 249, as re-enacted in the probate code, PA 1939, No 288 [CL 1948, § 702.45 et seq. (Stat Ann § 27.3178[115] et seq.)]), for approval of an agreement to settle a controversy as to the construction and effect of certain provisions of the last will and testament of Paul R. Gray and as to the rights of persons there under. The trial court entered an order approving the agreement and authorizing and directing the successor trustees under the will and the duly-appointed guardians ad litem to enter into and execute the agreement of settlement and so complete it in conformity with the governing statute. Defendant successor trustees under the will declined to sign and took this appeal. Hereinafter they will be referred to as the trustees. Testator died in 1929 leaving surviving him as sole heirs at law his widow and 3 married daughters who are all the children he ever had. His will was admitted to probate. After specific bequests, it devised and bequeathed the residue of his estate to his executor and trustee, in trust, for specific purposes, with directions that he “shall then set apart one-third (1/3) for the use of my wife and shall divide the remainder into as many portions or shares as there are children of mine living, or deceased children leaving lawful issue, and a share shall be set apart by my said trustee for each child of mine living, and the share of each deceased child shall be divided into as many portions as there are children living at my death of such deceased child, and a share shall be set apart for each such child.” The will then directed the trustee to pay the net income from the wife’s share to her and provided that at her death the principal sum of her share shall be distributed as the laws of Michigan provide. Next, the will directed the trustee to pay the net income of each child’s or grandchild’s share to such child or grandchild “so long as he or she shall live, at which time the whole of his or her share shall be distributed as the laws of Michigan provide.” The italicized language for distribution, at their deaths, of the shares of the 3 daughters' (because none of his children predeceased him) as the laws of Michigan provide presents the question sought to he settled by the agreement. Testator’s widow received the prescribed income during her lifetime. She died in 1945, leaving as her sole heirs-at-law the 3 daughters who, with her, had been testator’s sole heirs-at-law at his death. The principal sum of the widow’s share was then distributed and divided equally between the 3 daughters, becoming their property outright. As far back as in 1955 question arose in the minds of the 3 daughters, their husbands and their counsel concerning the above noted testamentary provisions. Counsel for some of plaintiffs advised that the words in question could be interpreted as providing, at the death of each of the 3 daughters, respectively, for any one of the following: “(1) Corpus to be distributed to heirs of the life beneficiary. “(2) Corpus to be distributed to heirs of testator, (a) determined as of the date of his death, (b) determined as of the date of life beneficiary’s death. “(3) Corpus to become part of the estate of the life beneficiary, and pass by her will if she left one, or to her heirs if she should die intestate. “(4) The corpus to be distributed as the life beneficiary may provide by the exercise of a power of appointment.” The settlement agreement was entered into in 1960. It was signed by the 3 daughters, their husbands and all of their adult children, except one of the latter who was mentally incompetent. The signers are also plaintiffs in the ease. Named as defendants are the 2 successor trustees under the will, who also are the appellants here, the mentioned mentally incompetent grandson of testator, the minor children and the grandchildren, all of whom were minors, of the 3 daughters, and the unknown, unborn, unascertained heirs, devisees and legatees of the 3 daughters and of testator, determined as of each of the 3 successive times when one of the 3 daughters should die. Guardians ad litem were appointed for all of these defendants who could not act for themselves, who appeared and made reports and recommendations to the court favorable tb this settlement. The 2 trustees appeared and alone contested this action. Pertinent provisions of the agreement as presented to the court read as follows: “1. Paragraph Third (e) of the will of the deceased shall finally and for all purposes be construed to provide that upon the death of each of the daughters of the deceased named in paragraph (b) above, the trust for her benefit shall terminate and the entire corpus thereof shall be distributed as follows: “A. In equal shares to her then surviving children and the then surviving lawful lineal descendants, by right of representation, of any then deceased child or children. “B. If she leave no child or other lawful lineal descendant her surviving, then in equal shares to her then surviving sisters and the then surviving lawful lineal descendants, by right of representation, of any then deceased sister or sisters. “C. If she leave no child or other lawful lineal descendant or sister or lawful lineal descendant of any sister of her surviving, then to those who would be entitled to distribution of her personal estate under the intestacy laws of the State of Michigan then in force. “2. The agreed construction set forth in paragraph 1 above shall be forever binding and conclusive upon the parties hereto, subject to the condition, but solely to the condition, that this agreement is completed by the due execution hereof by the successor-trustees of the trusts created under the provisions of paragraph Third of the will of the deceased and the guardians or guardians ad litem of all other persons who have, or may have, interests which are, or may be, affected thereby but who have not attained majority or are otherwise without legal capacity to act in person, in accordance with an order entered by the circuit court in chancery of Wayne county, Michigan, pursuant to the provisions of sections 702-.45 through 702.49, Michigan Compiled Laws of 1948, approving this agreement and authorizing and directing completion of execution hereof by such successor-trustees and such guardians or guardians acl litem.” After hearing, plaintiffs submitted a proposed «order approving the agreement and authorizing and 'directing its signature by the trustees and the guardians ad litem. Defendant trustees thereupon-filed objections to the proposed order. Their main objection went to the requirement in the order that they sign the agreement. They stated in their objections a willingness to sign the agreement, amended as hereinafter indicated, if the order or decree should approve such amendment by containing in it a provision as follows: Clause in Decree Directing Signature by Trustees "“Trustees Irvin Long and Mack Ryan have no interest in the ultimate distribution of the trust assets when the several trusts expire, except .that they must obey the order of the probate court of Wayne county in respect to such distribution and the division of same between the parties as such court shall determine to be entitled thereto. Wherefore, they are hereby authorized to sign the agreement attached .as exhibit A to the bill of- complaint in the manner following: “ ‘The undersigned, Irvin Long and Mack Ryan, successor trustees under the will of Paul R. Gray,' •.deceased, execute this instrument only to acknowl-' edge notice thereof, and to permit the filing thereof contemplated by Act 249, Public Acts of Michigan of 1921, as amended. The only obligation assumed by them in signing this instrument shall be and is limited to the duty of presenting evidence of this contract, and of the decree entered in Wayne circuit chancery file #600,767, to the probate court of the county of Wayne at the time they file their final accounts as trustees for any trust terminated by the death of the life beneficiary. No rights of any person who may claim a right to the assets of such trust, on termination thereof, shall be deemed created, extinguished, augmented, diminished or altered by such execution hereof by them.’ and upon such signature, this agreement shall become and be effective as to all other parties signatory.” Inasmuch as the burden of trustees’ written objections to the proposed decree consisted of their unwillingness to sign the agreement and, as they profess to believe, thereby assume a possible personal liability, and, further, the relief prayed for in their brief filed on this appeal states that their only interest is to be relieved of the duty imposed upon them by the order below to sign the agreement, our disposition of that subject as hereinafter set forth might be deemed to obviate the necessity for our discussion of questions ■ raised in their brief going-to the existence of statutory authority for and the validity of the agreement and order below. However, the interests of many persons other than the trustees are involved and the validity of the agreement and order ought to be determined here to insure orderly disposition hereafter of the trust and estate. Consequently, we shall touch briefly on sueh questions. Trustees say the circuit court was without jurisdiction to make the order entered because the Dodge act, PA 1921, No 249, was repealed by the probate code, PA 1939, No 288, and, although the legislature undertook to re-enact it, word for word, in the probate code, the title thereof was not broad enough to include a provision conferring Dodge act jurisdiction on a circuit court, so that, in consequence, such provision is unconstitutional. They point out that the title did, however, include a statement that the act was for the purpose of repealing certain unspecified acts, and, therefore, the repeal was valid. The title of the probate code stated, among its purposes, that of consolidating statutes governing the probating of estates and statutes of descent and distribution of property. We think this was broad enough to encompass, among the statutes being consolidated, the Dodge act relating to probating and distributing assets of a decedent’s estate. It certainly is as broad in that respect as is the title language about repeal of certain acts. We cannot agree that under the title the repeal was consummated but the re-enactment failed. The circuit court did have jurisdiction under the probate code and the bill of complaint may be deemed to have been laid thereunder. Trustees challenge existence of a good-faith controversy between signatories to the agreement prior to its making and the filing of this action. This, of course, is made a prerequisite by the statute. However, bad blood, epithets, name-calling, or rancor are not required. We agree with trustees that mere existence of “an academic difference of opinion as to how some provision of a will may or ought to be interpreted by a court at some future time” is not enough to warrant Dodge act proceedings. Applicable, nevertheless, from City of Flint v. Consumers Power Company, 290 Mich 305, 309, 310, is the following: “But the rights to be determined by declaratory judgment or decree may he and perhaps usually are rights not in praesenti, hut rights which are to come into full fruition or which will be fully vested at some future time. If uncertainties and controversies arise between interested parties as to what their respective rights will be when such rights accrue or’ become vested, and to avoid needless hazards or possible losses, it is necessary presently to have decision of such uncertain or controverted rights, then there is actual need of and justification for declaratory adjudication.” Trustees say that desire on the part of the daughters for present court determination of what will happen to the corpus of their trusts at their deaths so that they may the better determine what to do with respect to their own sizable estates by way of making inter vivos or testamentary disposition is not a sufficient basis for this action. Under the circumstances as herein briefly noted, we think it may well be. Pertinent as to facts is the following taken from plaintiff’s brief: “Some time prior to October 31, 1955, Mr. Long (1 of appellant trustees) had discussed with at least. 1 of the plaintiffs the uncertainty arising from the fact that the here pertinent provision of the will of Paul it. Gray, deceased, was subject to various interpretations. Thereafter, prior to the year 1958, each of the income beneficiaries of the 3 trusts retained counsel to advise her and represent her interests. One of the beneficiaries affirmatively asserted the position that upon termination of ‘her’ trust the remainder would be distributable to the heirs of Paul R. Gray, her counsel having advised her that such position was not only tenable but also of probable pecuniary advantage to her because her expectancy was greater than that of her 2 sisters. The beneficiary of at least 1 of the other 2 trusts was opposed to any formula of distribution which would disinherit her husband, and asserted the position that upon termination of her trust, the remainder properly should be distributed to her heirs.” Back in 1956 counsel for the husband of 1 of the 3 daughters, a plaintiff herein, wrote him as follows: “Perhaps the most important consideration for the life income beneficiaries • and their children in attempting to deal with their respective interests under the wil'1 is'thát presented by the possible impact of e’state and inheritance taxes. The amounts held in the trusts are such that, when taken together with other- property, which .the life - income beneficiaries individually own, it becomes not only extremely, difficult but. practically impossible to work out appropriate provisions for the allocation of the burden of such taxes through alternative testamentary or inier-vivos action. “The-'situation presented is not one where the various-possibilities of construction may be anticipated and -appropriately taken care of by alternative provisions in the will of any 1 person. The ramifications of the various possibilities are such that alternative action would be required not only by all 3 of the' life income beneficiaries but by all of their issue as' well and the longer the lives of the life income beneficiaries continue the more complicated the problem of making appropriate alternative provisions becomes. “Finally, if the proper construction of the will is not submitted to a court for determination until after the death of a life income beneficiary occurs, the trustee will be confronted with the necessity of withholding distribution of the trust corpus until that determination is finally made. This could serve to postpone the distribution for a period of years. Such a possibility should not be countenanced if it can be avoided without prejudice to the rights of the interested parties and, as alréady indicated, their rights may as adequately be protected now as at any time in the future.” Trustees say the question of will construction need not now be decided, but can better await determination when 1 of the daughters dies. As said in Sigal v. Wise, 114 Conn 297, 301, 302 (158 A 891): “The remedy by means of declaratory judgments is highly remedial and the statute and rules should be accorded a liberal construction to carry out the-purposes underlying such judgments. One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep, thpm within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly' pursuits of life which are so often the incident's ’ of lawsuits. Fully to carry out the purposes inténded' to be served by such judgments, it is sometimes-necessary to determine rights which will arise or'become complete only in the contingency of some future-happening.” Borchard, Declaratory Judgments (2d ed), pp 422-424, contains an apt statement: ' “The declaratory judgments act necessarily deals with present rights, but it is a present right to have a judicial assurance that advantages will be enjoyed or liabilities escaped in the future. Courts continually declare rights which have not become fixed under an existing state of facts, but are prospective only; they may not, however, be so remote and speculative as to be hypothetical and abstract. “It is nearer the truth to say that the courts will not determine future rights in anticipation of an event that may never happen, although even that generalization is probably a little broad. * * * “The general survey in this chapter will have indicated that the courts no longer hesitate, even in England, to declare legal relations to become active in the future, provided there is a tangible present interest in their determination and a useful purpose is thereby served.” Here, the question of interpretation of the will is not academic. Rights of parties to the agreement are affected directly. The question will not become moot. When the daughters die it must at all events be decided. It will be no different question then than now. To quote the language of Borchard, above, “a useful purpose” will be served by present conclusion of the matter. The knowledge and certainty derived therefrom by the daughters will materially aid them in determining upon inter vivos or testamentary disposition of their own property to or among those of whom the rights of some are affected by the agreement, and also in resolving matters having a real tax significance. As stated in Sigal, present harmonious disposition of the matter as in the agreement provided will serve to “avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of lawsuits” as well as the needless delay of distribution of the corpus of the trust fund at the death of a daughter, if the matter be left to litigation at that late date. There was here such good-faith controversy as is made by the statute essential to these proceedings. While trustees raise no direct question as to whether the effects of the agreement are just and reasonable as to the interests of any represented by fiduciary or guardian ad litem, the statute makes a finding by the court to that effect a prerequisite to its approval thereof. The trial court made such finding, which we think the record warrants and we affirm. In this connection we note the provision in the will that if one of his children should predecease testator, then the trustee should take the share which would have been for the benefit of such deceased child had she lived and divide it into as many portions as there are children living at his death of such deceased child and set it apart for each such child. This squares much more nearly with interpretation of the disputed testamentary language in accord with the life beneficiary-heir theory, to which the agreement gives effect, than with the testator-heir theory. Otherwise testator would seem to have discriminated, for no apparent reason, between the children of daughters surviving him and those of a daughter predeceasing him. The agreement serves to clarify testator’s will, not to substitute a new and different one for it. Coming now to the matter which is the trustees’ chief concern on this appeal, namely, the requirement in the order that they sign the agreement, the following questions are raised by them: (a) Are the trustees necessary parties to the agreement? (b) Does the statute confer power on the court to compel their signatures? (c) May a State, through legislation or court action, compel trustees to assume contractual obligations without violating Michigan Constitution of 1908, art 2, § 16, or the Fourteenth Amendment to the Federal Constitution? (d) Would their signatures impose a personal liability on them? (e) Are they acting equitably in declining to sign? These we consider, together, only insofar as is necessary to our disposition of this phase of the case. The language of section 47 of the act (CL 1948, §702.47 [Stat Ann §27.3178(117)]), providing for the court’s authorizing the trustees’ signatures and that the agreement is made complete and becomes valid and binding upon being so signed and filed, can scarcely be read to mean other than that the trustees’ signatures are required and that they are, therefore, necessary parties. Nowhere in the statute, however, does a legislative intent appear that those in the position of the trustees must, by reason of such signatures, or for any other reason, be made personally liable for damages to any whose interests are injured by the agreement. If the order and agreement were drawn to include the proposal submitted by the trustees in their written objections to the proposed order, absolving them from such personal liability, no problem would remain as to their liability, or the court’s power to require their signatures or the constitutionality of such requirement. We think this the proper course to be followed. With the agreement and order so amended the trustees can have no sound objection to signing, in view of our decision as to questions of validity. Such order may require their signatures, compliance with which the trustees then may only properly avoid by resignation as trustees. The order or decree will be modified in conformity herewith and so affirmed. No costs, neither side having prevailed in full. Carr, C. J., and Kelly, Black, Kavanagh, Souris, Otis M. Smith, and Adams, JJ., concurred. CL 1948, § 702.45 et seq. (Stat Ann § 27.3178[115] et seq.).— Reporter. See, by way of comparison, the authorization to make declaratory judgments or decrees. CL 1948, § 691.501 et seq. (Stat Ann § 27.501 et seq.). — Reporter.

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Souris, J. Defendant intracounty drainage board advertised for bids for a portion of the Twelve Towns Belief Drains. Six bids were received, ranging in amount from $1,370,000 to $1,470,000. The low bidder, Greenfield Construction Company, Inc., omitted from its bid a manhole for which other bidders had included in their bids amounts varying from $2,050 to $6,500. Before acting upon the bids, the drainage board advertised for separate bids for the manhole omitted in Greenfield’s proposal. Only Greenfield submitted a bid for this single item, its bid being in the amount of $2,000. Thereupon, the ■defendant board adopted a resolution providing for the acceptance of Greenfield’s original low bid and its “supplemental” bid for the manhole, the total of the 2 bids being about $17,000 less than the next lowest bid which had been submitted by plaintiff Mole Construction Company, Inc. Mole and its president, a resident and taxpayer of Oakland -county in which the drainage board functions, instituted this suit to invalidate the board’s resolution .and for related relief. After issue had been joined on the pleadings by the filing of defendants’ answer and a reply thereto’ by plaintiffs, a hearing was held on an order to show cause issued upon filing of the bill of complaint and on a motion to dismiss filed by defendants. The chancellor and counsel for the parties apparently considered the matter submitted for determination on the pleadings, the exhibits attached to the pleadings, and briefs filed by the parties. The chancellor dismissed the bill of complaint and plaintiffs have appealed. The defendants have cross-appealed, challenging the standing of plaintiffs to sue. Plaintiffs claim that contracts of the drainage board are subject to the requirements of section 221 of the drain code (CLS 1956, § 280.221, as amended by PA 1960, No 4 [Stat Ann 1961 Cum Supp § 11-.1221]) which requires that contracts be let to the lowest responsible bidder or all proposals be rejected and advertisements placed for new bids. They contend the practice followed by the drainage board in this case subverts the public policy reflected in the procedural requirements of section 221 and should not be countenanced. Had the board followed the requirements of section 221, plaintiffs claim it would have had to award the contract to Mole, the lowest responsible bidder whose bid included all items in the advertised specifications, or it would have had to reject all bids and to readvertise for new bids on the whole project. Were section 221 applicable to the defendant drainage board, we would be required to examine and discuss plaintiffs’ claims in detail. However, the defendant board operates under the provisions of chapter 20 of the drain code of 1956, PA 1956, No 40, as amended (CLS 1956, § 280.461 et seq., as amended [Stat Ann 1960 Rev and Stat Ann 1961 Cum Supp § 11.1461 et seq.]). See Southfield v. Drainage Board, 357 Mich 59. Section 471 of the code, a part of chapter •20, CLS 1956, § 280.471 (Stat Ann 1960 Rev § 11-.1471), merely requires that the drainage board advertise for and receive bids for performance of its construction work. It does not require acceptance .of the lowest bid, nor does it require as the only alternative rejection of all bids received. Section 484 of the code, also a part of chapter 20, CLS 1956, § 280.484 (Stat Ann 1960 Rev § 11.1484), expressly negates the plaintiffs’ claim that section 221 is nonetheless applicable to the defendant board. It provides: “In operating under the terms of this chapter, the several boards and officials shall not be limited by the provisions contained in other chapters of this act and the procedures required under the terms of such other chapter shall not be deemed to be applicable: Provided, That when not contrary to the bxpress provisions of this chapter, any provision or provisions in other chapters of this act may be incorporated by recital or by references into any order or resolution of the drainage board, and when so incorporated shall be deemed applicable to the project under this chapter.” Absent incorporation of section 221 by order or resolution of the drainage board, it cannot be said that the board had to accept the lowest responsible bidder who bid on all items in the specifications advertised or readvertise for the whole project. What was here done was not forbidden by the act’s provisions applicable to the defendant board and, absent any ■claim of fraud or other misconduct, the action of the board in accepting G-reenfield’s original bid as supplemented may not be judicially invalidated. In view of our conclusion on the substantive issue involved in this appeal, it is not necessary to con sider the issue presented by defendants’ cross-appeal. Affirmed. Costs to defendants. Carr, C. J., and Dbthmers, Kelly, Black, Kavanagh, Otis M. Smith, and Adams, JJ., concurred .

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Souris, J. By our long delayed grant of the last of defendant’s many petitions for rehearing of Fitzgerald v. Bixler, 350 Mich 688, we acknowledge candidly judicial errors requiring self-correction.. Unlike Romatz v. Romatz, 355 Mich 81, in which,.we acknowledged and corrected a prior erroneous declaration of law, the errors to which we here confess are errors of procedural fact upon which our prior decision was based. Plaintiff was awarded a jury verdict for $6,000 against defendant, a member of our bar, for conversion of money. After entry of judgment the trial judge, the Honorable Arthur Webster, denied defendant’s motion for judgment notwithstanding the-verdict based upon election of remedies, waiver, estoppel, and res judicata. Defendant then moved for new trial and, after hearing, the judge determined he had erred in denying defendant’s earlier motion for judgment notwithstanding the verdict, set aside the judgment for plaintiff and entered judgment for defendant. Plaintiff appealed following denial, below of a motion for rehearing. In her appeal, plaintiff stated the questions involved as follows : “1. Where one had deposited money with an escrow agent pending transfer of a liquor license to her, does her action against the licensees for specific performance of an alleged agreement to convey the license, which is unsuccessful because of failure to prove an agreement, bar her from recovering the deposit from the escrow agent? “2. Is the affirmative defense of election of remedy raised timely when it is first asserted before the trial judge after the jury has been sworn and empaneled ? “3. Did the defendant sustain the burden of proof that the plaintiff waived or ratified the defendant’s fraudulent conversion to his own use of plaintiff’s $5,000 deposit?” Defendant’s counterstatement of questions involved was: “1. In intervening in the Pinter case and by enforcing her claim to be the purchaser of defendant Swanson’s interest in the business, did plaintiff Fitzgerald make an election of remedies thereby estopping her from bringing this action to recover the purchase price paid by her for that interest in the business ? “2. Does the trial court have the right to correct a mistake made by the trial court, where the plaintiff was allowed to file a belated reply to defendant’s answer, and the defense of estoppel by election of remedies was raised prior to trial, by motion to dismiss, where the court at that time promised the defendant that it will protect his rights and the record in every respect, and that defendant will be heard in reference to said defense of estoppel by election of remedies ?” Only the second of plaintiff’s statement of questions involved was considered in reaching our prior decision. "We concluded that defendant’s answer failed to plead the affirmative defenses of election of remedies, waiver, estoppel, and res judicata; that such matters were first raised after pretrial conference by motion to dismiss filed after the jury was sworn without first amending the answer; and that,, consequently, defendant should not have been permitted by the trial judge to raise those new defensive grounds for the first time in his motion to dismiss and again in his subsequent motions for judgment notwithstanding the verdict and for new trial. ■ While it is true that defendant’s answer did not plead any of' the above mentioned affirmative defenses, inexplicably this Court overlooked the fact that the pretrial statement (reproduced in the record on appeal) included, as part of defendant’s claim, a statement of all facts necessary to defendant’s use of the defenses of election of remedies and estoppel. It also included a statement that both counsel agreed that proofs might be introduced in support of their respective claims as pleaded and as stated in the pretrial statement without further amendment of the pleadings. The pretrial statement, insofar as it is pertinent to this issue, follows: “Statement of Case: “This action was started in chancery and subsequently transferred to the law side, and now is a legal action sounding in trespass. “The plaintiffs [Ann Fitzgerald and her husband, who was later dismissed from the case] contend that on or about January 10, 1949, the plaintiffs herein being desirous of purchasing a 1/2 interest in the bar known as Line Inn retained the defendant, George Bixler, an attorney at law, to represent them in the transaction; that pursuant to the purchase, the plaintiff Ann Fitzgerald delivered to the defendant, George Bixler, the sum of $5,000 and received a receipt executed by his secretary, which money was to be held in escrow until such time as title of 1/2 interest in the Line Inn was placed in the name of the plaintiffs; that she did not. receive the 1/2 interest' nor was the money ever returned to her although demand was made. She now seeks recovery of the $5,000 plus interest to the date of judgment. “When the action was transferred to the law side, the case was dismissed as to the defendant William Swanson. “The defendant, George Bixler, contends and proposes to show that he was not retained by the plaintiffs as an attorney; that he represented one Eugene Sikora, who was desirous of purchasing the 1/2 interest of his partner, William Swanson; that several meetings were held toward such purchase and the defendant Bixler then stated he would not hold any further meetings relative to the purchase until his client Sikora produced the money for the purchase; that subsequently he was told by his client Sikora that his hat-check girl, who was the plaintiff, Ann Fitzgerald, would appear at Bixler’s office with the money. Subsequently, the plaintiff, Ann Fitzgerald, came to the office and delivered the $5,000 to the defendant Bixler and received a receipt signed by his secretary; that at a meeting between Sikora and the plaintiff, Ann Fitzgerald, and Swanson, the defendant Bixler was told by his client Sikora that the money was received as a loan from the plaintiff, Ann Fitzgerald, and under the circumstances the defendant Bixler advised Sikora he should execute a promissory note in her favor for the $5,000, which promissory note was delivered to Ann Fitzgerald at the time; that subsequently Sikora purchased the interest of William Swanson, and that the plaintiff, Ann Fitzgerald, was present when the transaction was consummated. Subsequently, financial difficulties were experienced by Eugene Sikora, and the chattel' mortgagee, Pinter, who sold the place to Sikora and Swanson, foreclosed on the chattel mort gage, 'joining Sikora and. Swanson as defendants. The matter was tried in this conrt and the plaintiffs interpleaded as defendants in that case, and a decree of this court adjudicated all the rights of the parties therein, including the plaintiffs herein. “The defendant Bixler contends and maintains that there is nothing due and owing from him to the plaintiffs, and that the plaintiffs are- now legally estopped from so claiming due to the position taken in the 'action tried before Judge Arthur Webster, ahd sec'oiidly, because Ann Fitzgerald was present when the money was turned over and continued employment after Swanson left the business; “Issues: “The issues are questions of fact’and law as outlined above. “Pleadings: “Counsel indicate they are satisfied with the pleadings, and each concedes that the.others, without further amendment to the pleadings, may introduce competent proofs in support of their respective versions of the case as presently pleaded and herein stated. * * * ... “Exhibits: “The receipt executed by the '^defendant Bixler’s secretary is admitted without further proof. “The chancery action tried before Judge Arthur Webster is likewise admitted. ‘' [The chancery action referred to is a suit which resulted in decree awarding this plaintiff a 1/2 interest in the Line Inn for her $5,000 and which is the basis for defendant’s claim she elected her remedy.]” The fact is that the affirmative defenses relied upon by defendant in his motion to dismiss and in his post-judgment motions, including election of " remedies] were legal issues-.in. the case by virtue of the pretrial statement. Our. prior conclusion that those mpfipns should have been denied because based upon new affirmative defenses was, therefore, erroneous.' Mich igan Court Rule No 35, § 4 (1945), Wayne circuit’s then current local Rule 1(g) of Part 2 (identical to its present Rule 32 [h] ). See, also, Kolton v. Nassar, 352 Mich 337, and Hyma v. Hippler, 365 Mich 127. Furthermore, defendant’s motion to dismiss made at the commencement of trial was based squarely upon the defense of election of remedies. Judge Webster refused to decide the motion at that time and expressly stated to defendant’s counsel, on the record, that he would decide the motion later and that defendant’s rights in that regard would be protected. When Judge Webster finally granted defendant judgment'notwithstanding the verdict, he quoted from the transcript what transpired at the time defendant sought dismissal on the ground of election of remedies and properly concluded that the court had given defendant its assurance that his affirmative defense would “not be foreclosed because of a technical absence of a formal plea of election of remedies.” We now conclude that defendant was entitled to rely upon the affirmative defense of election of remedies, that it was properly raised in his motion to dismiss which Judge Webster reserved for decision, and that he was entitled to raise the defense in his subsequent motions for directed verdict and for judgment notwithstanding the verdict. Another ground upon which we previously decided the trial judge erred in entering judgment for defendant notwithstanding the verdict was our mistaken belief that the record failed to disclose that a motion for directed verdict had been made by defendant during trial. Had we been right, then of course failure to move for directed verdict during trial, in this case, would have barred defendant from moving for judgment notwithstanding the verdict. Court Rule No 37, § 8 (1945). In re Calhoun Estate, 346 Mich 227, 232. Our conclusion that no motion for directed verdict had been made during trial was apparently caused by a weird typographical blunder by which two lines of type which should have appeared at the bottom of one page of the calendar entries in the printed record on appeal appeared, instead, at the bottom of the opposite facing page of calendar entries. Unfortunately, the transposed lines of type were the entry for the motion for directed verdict crucial to defendant’s subsequent motions. The original typewritten calendar record contains entry of this motion in its proper date sequence and the original motion appears in the file in its proper page-numbered sequence. Furthermore, reference is made to the motion in the trial judge’s opinion in which he first denied defendant’s motion for judgment notwithstanding the verdict. However, absent reference to that motion in the-printed record on appeal at the place in the calendar entries where it should have appeared and absent a copy of the motion in the printed record, we concluded no such motion had been made. In fairness to counsel for the parties, it should be noted that the statements of questions involved did' not require for their resolution reference to the: motion for directed verdict and failure to print a copy of it in the printed record on appeal was entirely justifiable. It became important only when this Court injected into the appeal a new procedural issue not claimed or briefed by plaintiff-appellant. It is regrettable, however, that the printed calendar entries were not proofread more carefully by counsel.' Had they been, the typographical mistake readily would have appeared and our error certainly would have been avoided. .It should also be mentioned that not until shortly before we granted rehearing did defendant supply the Court with a transcript, certified by the court reporter, of a portion of the proceedings below from which it appears that the motion for directed verdict was argued to the trial judge and taken under advisement by him. The net result of all of this is that almost 5 years •after our decision, defendant has succeeded in convincing us that we erred on both 'procedural grounds upon which our prior decision was based and, upon present consideration of the substantive merits of plaintiff's appeal, that our prior order of reversal should be vacated. Judge Webster was right and, on this rehearing, we affirm his judgment for defendant notwithstanding the verdict. As has been noted earlier, Judge Webster first denied defendant’s motion for judgment notwithstanding the verdict. Later, defendant moved for new trial and upon considering that notice, the judge concluded that he had erred in refusing to enter judgment for defendant notwithstanding the verdict. Instead of granting a new trial, he thereupon set aside the jury’s verdict and entered judgment for defendant. He did so because he concluded, and we agree, that plaintiff’s right to sue defendant was barred by a prior election of an inconsistent remedy. It will be recalled that in this suit plaintiff maintained, both in her declaration and in the above quoted pretrial statement, that she was'entitled to the return of the $5,000 she had given- defendant because the purchase for which it was to be used had not been consummated.- However, prior to starting this law action, plaintiff had taken an entirely different position in connection with the same purchase transaction in a chancery suit in the same court. By her voluntary participation in the chancery: 'suit, in which it was decreed she had acquired a 1/2 interest in the Line Inn tavern, Judge Webster correctly concluded that plaintiff was thereafter barred by such election of remedies from contending in this action that she was entitled to return of the purchase money because the purchase had not beén completed. The chancery suit, to which reference was made in the pretrial statement as quoted-above and in which plaintiff intervened, was between one Pinter and Swanson and Sikora. Pinter held a chattel mortgage on the personalty of the Line Inn and he had an agreement from Swanson and Sikora, chattel mortgagees, to reassign the liquor license to him upon default in payment of the sum secured by the mortgage. He was seeking enforcement in chancery of his rights under the mortgage and the agreement. Plaintiff Fitzgerald’s sworn pleadings filed in the Pinter suit, included in this record on-appeal, disclose that she then claimed, as she still does, that the $5,000 she gave defendant Bixler was to be applied to the purchase price of a 1/2 interest in the Line Inn and she prayed for an adjudication in the-.Pinter suit of her interest in the tavern. Both plaintiff and her husband worked at the tavern from at least January to June of the year in question. The payment to defendant wás made in March and the business collapsed in June. The chancellor found that plaintiff Fitzgerald had succeeded to a 1/2 interest (Swanson’s former share) in the tavern by purchase, as she claimed,, apd decreed that she and Sikora were entitled to-- all its assets after, however,. specific performance of the Swanson-Sikora agreement to reassign the liquor license to Pinter. Unfortunately, the physical assets of the tavern had been sold at auction to pay tax obligations incurred during operation of the tavern, thereby leaving nothing of value for plaintiff’s interest. No appeal was taken from the chancellor’s decree. We have not found a similar case in our reports. However, there are many cases we consider somewhat analogous in which a vendor or vendee of land or personalty is required to make a choice between .•affirmance or disaffirmance of the transaction; he cannot choose both. See, generally, Kefgen v. Coates, 365 Mich 56; Welling v. Dave’s Cut Rate Drugs, 362 Mich 389; Beckley v. Cotton, 352 Mich 19, and cases cited therein. • Plaintiff asserts here that the defense of election of remedies does not apply where a mistake in remedy has been made. But, the mistake made by plaintiff is not such as is referred to in the very cases cited by plaintiff. Among those cases are McLaughlin v. Austin, 104 Mich 489, and Clements v. Constantine, 344 Mich 446, in both of which the mistake referred to was a misconception of remedy in which recovery could not he had because legally the remedy did not exist. Here, the chancellor’s decree gave plaintiff what she prayed. Her remedy in chancery was not inappropriate; that the remedy she legally achieved in chancery has proved of no value does not constitute a mistake relieving her of her election. See Mertz v. Mertz, 311 Mich 46. Other claims made by plaintiff to escape the results of her election of remedies do not merit discussion. Because of our decision that plaintiff was thus barred from maintaining this suit, it is not necessary to consider the last question raised by plaintiff concerning the proofs. Judgment below affirmed. Defendant may tax costs. Carr,' C. J., and Kelly, Kavanagh, Otis M. Smith, and Adams, JJ., concurred with Souris, J. Dethmers, J., concurred in the result. Since grant of rehearing defendant has died and his estate’s administrator has been substituted. Eor convenience, we will omit further reference to the administrator in this opinion. Amended on July 1, 1958, after trial of this case. 352 Mich xv-xvi. See Honigman, Michigan Court Hules Annotated, 1957 Supp, p 251, and 1959 Supp, p 301. — RepoBteb. As amended. See 335 Mieh lxii. — Reporter.

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Campbell, C. J. A writ of certiorari was issued by the circuit court for the county of Wayne to review a conviction in the recorder’s court of Detroit for an alleged violation of a city ordinance. The recorder applies to us for a mandamus or prohibition to prevent the circuit court from exercising this jurisdiction. The whole question turns on the inquiry whether the recorder’s court of Detroit, acting in the particular case in controversy, is a court inferior to the circuit court. The Constitution of Michigan, in terms, gives to the Supreme Court a general superintending control over all inferior courts, with power to issue writs of error and other writs named, both original and appellate. Art. 6, § 3. By section 8 of the same article the circuit courts are given general civil and criminal jurisdiction, except as otherwise provided, and appellate jurisdiction and supervisory control over all “inferior courts and tribunals ” within their jurisdictions. By section 1 “the judicial power is vested in one Supreme Court, in circuit courts, in probate courts,-and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature in cities.” By section 15 the Supreme, circuit, and probate courts are declared to be courts of record, and required to have each a common seal. A preliminary question is, what is meant in this Constitution by the term “inferior courts?” The relator’s argument is largely based upon what counsel suppose to be the common-law definition of an inferior court, which always means a court which is not one of the four great courts of the realm; that is, the court of chancery and the three great common-law courts sitting at Westminster. Toml. Law Dict. “ Inferior Courts.” Another less accurate distinction is found in the distinction between courts of record, whose records establish themselves, and are valid judgments in themselves, and courts not of record, proceeding under special conditions, whose jurisdiction is not presumed. The recorder’s court is a court of record by name, and, so far as it has compion-law powers, its records are treated as common-law records. But it also has special and peculiar powers, where its records are open to the more or less limited objections allowed by all jurisprudence in such peculiar eases. And it is very well known that in England there have always been many courts, not sitting at Westminster, whose records are respected. The term “inferior” is not of one single meaning in law, but is used in different senses. Under the Constitution of the United States, Congress has no power to create courts which are not inferior to the Supreme Court. The cases cited by counsel from the decisions of that court do not claim that the circuit and district courts are not inferior to the Supreme Court, but merely that, being courts of general powers and of record, they are not inferior courts in the sense in which that word is sometimes used to distinguish courts among themselves after their kind. In England, error lay to the common pleas out of the king’s bench, making the former, in our constitutional sense, inferior to the latter, while both ranked as superior courts. So all of them were subject to review by the exchequer chamber, and that by the house of lords. Our American constitutional use of the word refers to relative rank and authority, and not to intrinsic quality. Under our own Constitution, as under that of the United States, the Supreme Court could have no appellate power or supervision over the circuit courts except on this idea that they are inferior to it, for none but' inferior courts are subjected to it, and the jurisdiction of our circuit courts equals that of the English superior courts. And if the argument for the secondary English rule is valid, resting on the distinction between courts of record and others, both circuit and probate courts being declared courts of record, and not in terms made subject to the Supreme Court by the Constitution, except as by their nature inferior to it, no supervisory power could exist in either Supreme or circuit courts over the probate courts. Yet the latter have been made subject to the circuit courts, and continue so, and their powers are subject to legislative control. They are not common-law courts of record. There is, however, a significant difference between the Supreme and circuit courts in regard to the scope of their supervisory jurisdiction. The circuit court has not been given any express power to issue writs of error, which are the only writs adapted to reviewing ordinary common-law judgments. In the charter of Detroit the only proceedings in the recorder’s court expressly provided for as appealable to any other court are required to be removed to the Supreme Court “ by writ of error, or other process; in the same manner that like proceedings may by law be removed to the Supreme Court from the circuit courts of the State.” Local Laws 1883, p. 641. On examining the charter, it will be found that these courts have no like proceedings with the circuit courts, except in common-law cases. Special proceedings are always statutory, and must be conducted where the statute places them, and the circuit courts have no jurisdiction over ordinance cases under their original powers. The charter unquestionably puts the criminal business and the street and alley cases expressly beyond the jurisdiction of the circuit court, either original or appellate. The real controversy is whether the fact that a part of its jurisdiction is exempt from circuit court supervision prevents the recorder’s court from being inferior to the circuit. The primary purpose of the recorder’s court was to serve as an agency of the city in enforcing by-laws and ordinances and other municipal business. It succeeded to the mayor’s court, which, by the charter of 1827, if not earlier, was made a court of record, and vested with all of the ordinary powers of the present recorder’s court, except its jurisdiction over crimes. By that charter, and amendments to it, the mayor’s court was given a very large common-law juris diction of all civil cases arising within the city in which the city was a plaintiff, and those cases were required to be tried according to the rules governing the circuit courts. Act of April 13, 1841, § 3. Nevertheless, in spite of its character as a court of,record trying and adjudicating these common-law issues, without reference to their magnitude, which might include many thousand dollars,,and which in their nature were of as high a nature as indictments, an appeal lay to the circuit court of Wayne county, subject to the rules governing appeals from justices. Act of 1841, § 4. In Welles v. Detroit, 2 Doug. 77, an attempt was made by the city to prosecute a debtor by attachment proceedings in the mayor’s court, claiming that in common-law city causes it had the same jurisdiction as the circuit; but the judgment was taken directly to the Supreme Court by certiorari, and not by writ of error, where it was held that the civil jurisdiction of this court was limited as expressed, and could not be extended by construction so as to embrace this extraordinary remedy, which in terms was allowed to circuit courts by name, and the proceedings were quashed. Under the old Constitution, which did not define or grant jurisdiction to the circuit courts, but left all but the Supreme Court to be provided for at discretion, the circuit courts had their whole appellate power provided for by statute. The mayor’s court was not only put under the circuit court, but its judgments were all open to appeal and retrial on the merits. The Supreme Court alone could issue writs of error and certiorari under its common-law jurisdiction. Under the Constitution of 1850, as already seen, the circuit courts were empowered to issue writs of certiorari in the exercise of their supervisory control. In the circuit court acts, no provision was made for the writ of certiorari, except in special cases, and it seems to have been supposed the power was entirely statutory. But when the question was brought into this Court, it was held that the right to issue a common-law certiorari, being given by tbe Constitution, could, not betaken away by statute, and existed in the circuit courts as an inherent power. Thompson v. School District, 25 Mich. 483; Taylor v. Judge of St. Clair Circuit, 32 Id. 95; Merrick v. Township Board, 41 Id. 631; Wilson v. Bartholomew, 45 Id. 41. In 1857 the charter of Detroit was revised and re-enacted, and then, for the first time, the recorder’s court was provided for, to succeed and carry out the po'wers of the mayor’s court, substantially as before; but it was also to have exclusive jurisdiction for the trial, but not for the finding of indictments, of all indictable crimes committed in the city of Detroit. In the trial of these cases, and in reviewing them, the general laws of the State, as provided for the circuits, were made by the charter to apply, and, as already suggested, the removal to the Supreme Court was to be in the same way provided for like cases in the circuit courts. Charter, c. 6, § 24, and subsequent sections passim. In this charter the system of procedure for other cases was. otherwise regulated, and the jurisdictions were kept separate, not only in beginning suits and issuing process, but also in employing city officers for city cases, and the local criminal officers representing the ordinary criminal authority for criminal cases. In a recent revision of the charter, in which these matters were partially confounded, so as to give, as was-claimed, exclusive and different methods of prosecution and complaint to the recorder’s court, we held there was no such distinction, and the amendment, as far as attempting it, invalid, People v. Judge of the Recorder’s Court, 59 Mich. 529. There can be no doubt that, at least up to 1857, the mayor’» court was legally regarded as an inferior court, subject to the review of the circuit. It is equally clear that the recorder’s court is the same court, with an enlarge 1 jurisdiction. It is. also apparent that, in giving this broader jurisdiction, not ■only were its methods and conditions in the new jurisdiction prescribed, but special provision was made for the review of the judgments rendered under it. No provision whatever is ■expressly made for the review of the action of the court under the ordinances. It was claimed, in a litigation that arose in an ordinance ■case several years ago, that the section which gives jurisdiction on appeal to the Supreme Court over convictions, in analogy to circuit court cases of similar character, constructively applied to convictions under ordinances. But in the several controversies which came up consecutively between ■the city and the same citizen for an alleged illegal closing of an alley, the double character of the recorder’s court, and of appellate proceedings from it, was pointed out and distinguished. In People v. Jackson, 7 Mich. 432, respondent had been convicted by the recorder’s court, under a regular criminal information, for closing the alleged alley, and the case was properly brought up before sentence, and decided here on the exceptions. But the case was held to involve no criminal ■offense, and the conviction was set aside for that reason. Thereupon the city prosecuted _ him under an ordinance intended to cover the case, and he was again convicted. The recorder undertook to reserve the questions for consideration by this Court, as could have been done under the criminal practice, and reliance was had on the clause of the charter before referred to as regulating removals to this Court. The Court held that, when he tried cases under the ordinances, he was acting merely as a municipal officer, enforcing regulations of which we could not take judicial notice, and that no •cases could be reserved except where he performed the functions of a circuit judge under the laws of the State. The proceeding was therefore dismissed. People v. Jackson, 8 Mich. 78. A second attempt was made in the same case to bring it up on exceptions before judgment. People v. Jackson, 8 Mich. 110. This was dismissed on the same ground, and the double character of the court was again fully discussed, and the charter construed, as before, as keeping the two jurisdictions separate. It was brought up a third time on writ of error (Jackson v. People, 8 Mich. 262), and dismissed again as not subject to writ of error. It was last brought up on certiorari (Jackson v. People, 9 Mich. 111), when the conviction was quashed for excess of jurisdiction in attempting to decide by a municipal court a controversy which involved rights that could only be determined by the laws and courts of the State. We have found no authority for holding that a municipal-court changes its relative position to other courts by becoming invested with new powers which those courts cannot, review. Such instances are by no means rare, and it has always been found possible to keep the powers distinct. All-common-law courts of record in the United States have been given certain powers under the naturalization laws of Congress, but this has never been supposed to bring that jurisdiction under the control of State appellate courts. The Supreme Court of the United States has recognized the existence of special powers granted to circuit and district courts as outside of its judicial cognizance. United States v. Ferreira, 13 How. 40. In Auditor General v. Pullman Palace Car Co., 34 Mich. 59, where the circuit court of, Ingham county was given jurisdiction of appeals from the Auditor General in certain cases, we held that the proceeding was aside from the ordinary judicial jurisdiction, and therefore not subject to our review in any shape.- In Southwick v. Postmaster General, 2 Pet. 442, the case was quite parallel with this. There a suit was brought in a district court of the United States, having circuit court powers at common law, and judgment was rendered, which was removed regularly by writ of error to the circuit court of the same district, where it was affirmed. A writ of error was then taken from the circuit to the Supreme Court. Under the act of Congress, the district court had been empowered to act in such cases either as a district or a circuit court, and it did not appear on the record in which capacity it acted. If acting as a district court, the action of the circuit court on error could not be reviewed by the Supreme Court. If acting as a circuit. court, the decision of the regular circuit court, on error from it, could be reviewed by the Supreme Court. Chief Justice Marshall held it must be presumed to have been acting as a district court, and so the writ of error was dismissed. He said: “Had the court for the Northern district of New York possessed no circuit powers, it could still have taken cognizance of this cause. By conferring on it the powers of a circuit court, Congress has added nothing to its jurisdiction in this case. In taking cognizance of it, a district court has exercised the ordinary jurisdiction assigned to that class of courts. No extraordinary powers were brought into operation. We cannot say that a district court, performing the appropriate duty of a district court, is sitting as a circuit court because it possesses the powers of a circuit court also.”' The fact that the recorder’s court acts as a State criminal court in criminal cases does not make it any the less a city court in city cases. It has already been decided that these ordinance cases involve not State law, but city law, and must be reviewed on certiorari. So far as these cases are concerned, the charter has not been substantially changed, and there is no reason to suppose the Legislature meant any change. The remedy by appeal has been dropped very wisely, as State courts are not designed to act as municipal courts; but no interference has been had to provide any other remedy, so that the certiorari is the only one to boused. The review of such cases is as appropriate for the circuit court now as it was prior to 1857. It is plain enough that a municipal court is presumptively inferior to a circuit court, so far as its jurisdiction, is not of equal character. We can see no difficulty whatever in separating the two jurisdictions. That separation exists in the circuit courts themselves, between law and equity, between civil and criminal jurisdiction, between original and appellate jurisdiction. We think the certiorari was properly issued, and the application of relator must be denied. No costs will be awarded, as relator acts officially in an entirely proper effort to have his duty defined. The other Justices concurred.

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Chahplin, J. On a petition filed by relator, we granted an order requiring the respondents to show cause why a mandamus should not be granted requiring them to approve of the sureties in a certain liquor bond to enable the relator to engage in the business of keeping a saloon in the township of Sparta, Kent county, Michigan. The penalty fixed by the township board for bonds of this kind was $6,000. The law requires at least two sureties, who shall each justify in the amount of the penalty over and above all indebtedness, exemptions, and liability on similar bonds. The law also authorizes and requires the township board to pass upon the sufficiency of the bond presented. The two sureties named in the bond were Hollis S. Hilton and Anthony W. Boorom. The board were satisfied with the sufficiency of Hilton as surety; but, after investigation and hearing, at which the relator appeared by attorney, they decided not to approve the bond on account of the insufficiency of the surety Boorom. The relator sets up in his petition that the conduct of the board in refusing to approve said bond was a willful disregard of his rights, and by their conduct and decision the statute under which he presented such bond was absolutely ignored by the board; that the surety Boorom was sufficient, and worth more than $6,000 over and above all exemptions and indebtedness;' that the act of the township board in refusing to approve said bond is against the just rights of the relator, and that it was the duty of the board to approve said bond. The respondents answered the petition at great length, setting forth their action and investigations; and they deny that said Boorom is or was a sufficient surety at the time the board rejected the bond for that reason; and they deny that his sufficiency was known to every member of the board. On the contrary, they assert that every member of said board believes and avers that said Boorom was and is insufficient pecuniarily to become said surety on said bond, and that said board ought not to approve him as such. They deny any intention or purpose willfully to disregard the just rights of the relator, and they disavow any intent or purpose to unnecessarily hinder and delay or to annoy said relator, or to deprive him of any of his just and legal rights; and say that said board have been from the beginning, were at the time of the hearing, ever since have been, and now are, ready to accept and approve a bond with sureties pecuniarily responsible and sufficient; and that respondents have always been and are now willing to approve such bond, and to perform their duty under the statute in this behalf, and have faithfully sought to so perform their duty, and do not claim, and have not claimed or exercised, the right to exclude said relator from engaging in said business in said township, providing he complies with the requirements of the law; and that the members of the said board have sought, in all their proceedings in this matter, only to ascertain whether or not surety Boorom was pecuniarily responsible and sufficient, and whether or not it was their duty to approve said bond; and that said board believed and now believe that said Boorom is not pecuniarily responsible and sufficient, and is not worth in his own right, at a fair valuation, $6,000 over and above •all liabilities and exemptions from sale on executions; and, ¡so believing, they submit that said board ought not, and ■could not conscientiously, with due regard to their duty, Approve said bond. The answer fully meets the allegations of the relator’s petition, and raises a direct issue as to the surety Boorom’s pecuniary responsibility and sufficiency as such surety, and ■denies that he is worth $6,000 over and above his liabilities And exemptions. The relator did not ask to have any issue ■submitted to a jury, and the answer must be taken as true ■whenever it militates against or comes in conflict with the ■averments contained in the petition. This is not an appellate proceeding. We are not called •upon to decide whether, from the record and the showing made by Boorom, he was in fact worth more than $6,000 over And above his indebtedness, liabilities on other similar bonds, And exemptions, or whether he was not. What we are called upon to determine is whether the respondents have acted in good faith, and not arbitrarily or unjustly. We are only concerned with the facts so far as they throw light upon the conduct of the board in rejecting the bond. "Unless the facts Are inconsistent with statements of good faith and honest discharge of their duty contained in their return under oath to ■us, we must give credit to such return. Counsel on each side have reviewed the facts embraced in ■the petition and return; and from them, on the one side, they make out that Boorom’s property footed up more than ■$6,000, and even as high as $10,000; while on the other side, ■from the testimony and facts viewed in the light which the ■respondents took, his property amounted to less than $6,000. We cannot say that there is such a preponderance of testimony in favor of the relator’s conclusions as shows conclusively or even probably that the members of the board were actuated by illegal or improper motives in rejecting the bond. They were called upon to exercise a sound legal discretion, and this called for the exercise of judgment based upon the weight of evidence. From this evidence they tell us that they did not believe that Boorom was pecuniarily -sufficient. From the whole record we cannot say that the respondents have acted arbitrarily or capriciously, or with -a design to evade the law, and therefore the writ must be refused. Campbell, O. J., and Sherwood, J., concurred. Morse, J., did not sit.

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Sherwood, J. The respondent was prosecuted and convicted in the police court in the city of Detroit for stealing $2.75 and a bottle of brandy, and the judgment was affirmed ■on certiorari in the Wayne county circuit Court. The case is brought into this Court by writ of error. The respondent was found guilty on a trial had by jury in the police court. But two questions require consideration in this case. First, was it necessary that the prosecuting attorney should have authorized this prosecution, or that the complaining witness should have given security for costs? How. Stat. § 7135 a, was not intended to limit or curtail the jurisdiction of justices of the peace in criminal cases. The object sought to be accomplished by that statute was to guard against the indiscretion, frequently indulged in by magistrates, in permitting legal proceedings to be instituted against parties for crime without any previous inquiry into the circumstances. While an omission to secure an order from the prosecuting •attorney before issuing process in criminal cases might subject the magistrate to censure, and possibly, in some cases, to pecuniary injury and official embarrassment, it was never intended to deprive the court of jurisdiction in any case ; and whether the complaining party ha3 given to the people security for costs in the case is a subject in which the respondent is not especially interested, and, if the people are satisfied to prosecute without such security, there is no reason why he should complain. The prosecuting attorney appeared and prosecuted the respondent before the police court, which is certainly sufficient approval by him. The second question suggested for our consideration is. whether there was or was not sufficient testimony to allow the case to go to the jury. Upon this question we have no-doubt the police justice ruled correctly. At the close of the trial before the police court, counsel asked for the respondent’s discharge on the ground that the people’s testimony did not make out a case against him. The police justice in his return says that upon the trial John Kestel was sworn, and testified that he was the j roprietor of a drug store at Detroit, and that on the fifth day of July, at about 12 o’clock, respondent came to his place and asked for brandy, and told him to send a quart to Mrs. Howard’s, 690 Cass avenue, and with it change for $5; that, by reason of such request, witness sent a boy with the brandy and change, who shortly returned with a receipt reading as. follows: “June 27, 1886. “Received from Nat’l Bank, ten dollars. “$10. G. York.” Indorsed on back, “G. York.” Hedges, the boy sent with the brandy and money, testified that he was lá years of age, and was asked by Kestel to go on an errand, in the presence of a man in the store whom he positively identifies as respondent, and as the man who wanted the b'andy sent to 690 Cass avenue. This witness also testifies that, before he reached Cass avenue, respondent met him and told him the place to go was on Second avenue, and together they started'for that street, and. before reaching it, he told witness he would carry the “goods” himself; that, thereupon witness gave i\sspondent the brandy and money, and took from him the receipt before mentioned, which he delivered to his employer. A bottle of brandy of the same description as that taken from the boy was subsequently found at respondent’s room in the hotel. If the felonious intent existed, the taking from the boy, under the circumstances, and the carrying away of the property by the respondent, were sufficient. We think there was sufficient evidence of facts and circumstances shown to submit the question of intent to the jury. The leading question put to the witness Hedges, for the purpose of identifying the respondent, was relevant and competent, and its leading character, while objectionable, was not, in view of the testimony given by the same witness previously upon that subject, erroneous. The judgment below must be affirmed. The other Justices concurred.

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Campbell, C. J. Eelator, a British company, applied to the Insurance Commissioner for a license to transact business in this State, which he refused to allow without a deposit of securities to the amount of $100,000, which is required by statute where no similar deposit has been made at such other place as is contemplated by law. Eelator showed proper evidence that such a deposit had been made in the state of New York upon the conditions required by our legislation. The only question is whether, under the statute which governs this case, and which was fully discussed on the argument, a deposit in New York is a sufficient compliance. The statute (Act No. 337, Laws of 1881, p. 379) requires a-deposit of at least $100,000 with the State Treasurer of this State, or with the chief financial officer or commissioner of insurance of the state where such company or association is-organized, duly assigned to such officer in trust for the benefit of all policy-holders. Said deposit shall consist of bonds or stocks of the United States, or of the state where such company or association is organized, or of bonds and mortgages on improved unincumbered real estate worth double the-sum loaned thereon. It is not disputed that the statute designs to allow licenses-to companies formed under the laws of foreign governments, as well as to those created in other states of the Union. They are all covered expressly by more than one section of' the statute. But the right to rely on a deposit of securities- elsewhere is in terms confined to deposits in the state in which a company is “organized.” It is not claimed that this relator was organized in New York; but it is insisted that obtaining authority to do business there satisfies sufficiently the essentials of organization. It is further claimed that the insurance department has practically construed this statute by licensing companies on that theory, and that the present; commissioner had done the same thing until his attention was directed to the question in such a way as to lead him to doubt its correctness. Much respect is due to practical construction when it does no violence to language, and has been so long continued as to show general acquiescence; but in this case the present refusal is from the same officer whose predecessors have given the other construction, and who has refused to recognize it. The law has not been in force long enough to make it evident that this construction has been brought home to the attention of the various departments of the government, and approved by their acquiescence. It would require a very clear case of practical acquiescence to authorize us to compel the head of a bureau to follow precedents which he does not himself regard as binding, unless they are at least so harmonious with the language of the law as to create no repugnánce to it. We cannot avoid the necessity of looking at the statute itself. When we do this, we find that it does not group together under one name or class all companies not originating in Michigan, but divides them more than once into companies of other states and foreign companies. The use of the word “states” is manifestly confined to our own communities within the United States. In one sense, nations are often and properly designated as states; but where companies formed under the laws of foreign governments are mentioned as distinct from companies of other states, we cannot suppose the repetition and distinction are meaningless. If no differ •ence was intended to be recognized, the language used is very .inappropriate. When, after mentioning both of these classes, the Legislature proceeded to provide that companies which had deposited securities to the amount of $100,000 in the proper custody in the states in which they were organized need make no deposit here, we must assume the omission to cover foreign •companies by this exemption was intentional. We may not be able to tell just what reasons influenced the Legislature, ■but it is easy to see differences which might have been considered. The object of providing the deposit is to secure a fund to which our citizens may have convenient access for indemnity for their unpaid losses. A deposit abroad would be of no practical use to them in most cases, because not readily accessible. If we give the word “state” a sense which will include a foreign nation, the language of the •statute would require the deposit to be made in the foreign state to which the company belonged. That would not help this relator, because the deposit is in New York, and not in Great Britain. It is therefore claimed that what the statute means is that the deposit should be made in another American state, but that the word “organized” may mean licensed to do business. This is not a natural meaning. A British company may be licensed to do business in every state of the Union. Under the interpretation claimed, it might have a single deposit in any of the states. So a New York company might be licensed in every state. This same construction would allow the deposit of that company to be made anyr where else as well as in New York. But if the statute said nothing about foreign companies, no one would imagine that ■an American company could be treated as organized anywhere but in its home state. Language which is so plain and definite when so applied cannot be made to mean something else, and applied to objects which in no way fulfill its •condition?. If there were no way in which foreign companies could' otherwise get a license here at all under this statute, which expressly covers them, we might be called on to devise some-construction which would save the whole statute. This is a. ratüer dangerous process, and, if allowable at all, can only be made so by necessity. But here there is no such necessity. They can get it by making a deposit here. The conditions on which companies can be exempted from this general rule-are expressly confined to American companies, and can reach no others. It is not our province to speculate on the possible views-which may have influenced the Legislature. It was within their discretion to impose these conditions. If they acted inadvertently, they can very easily remit them. But we have-no such power. The mandamus must be denied. The other Justices concurred. See Act No. 272, Laws of 1887, amending section 2 of Act No. 237, Laws of 1881, by making provision for such cases.

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Champlin, J. The original bill of complaint in this case was filed by Elizabeth Waterfield against the defendant for ■the purpose of enforcing a vendor’s lien for a part of the unpaid purchase money upon the sale of the east half of the south-west quarter, and the west half of the south-east quarter of the north-west quarter, of section 3, in township 5 north, range 9 east, being in the town of Brandon, Oakland county, Michigan. It stated that on the tenth day of June, 1875, she was the •owner in fee simple of the above land, and on that day sold and conveyed it to defendant for the price of $600, $400 of which was paid down, and defendant was to have five or six years in which to pay $200 with interest at 10 per cent per annum; that no security was taken therefor, but complainant was to hold a lien on the land for said unpaid purchase money; that on or about the sixth day of May, 1876, defendant paid one year’s interest. It charges that no part of the said $200 has been paid, nor the interest other than that above-stated; and that she has not waived nor relinquished her vendor’s lien for the unpaid purchase money. It prays fora foreclosure and sale to satisfy such lien. The defendant answered, and admitted her ownership and sale, but denied-that the purchase price was $600; averred that it was only $400, and was fully paid down at the time-of sale. Proofs were taken, but before decree defendant ascertained that complainant never owned the parcel last above described, comprising 20 acres of the land alleged to belong to complainant, but the same belonged wholly to James Waterfield, the-husband of complainant. The deed put in evidence showed that it was executed by James Waterfield and Elizabeth Waterfield, his wife, and contained a covenant that they were well seized in fee simple of the granted premises. The defendant petitioned the court for leave to amend his answer so as to deny instead of admitting that complainant was-the owner in fee simple. This was granted. The complainant then petitioned the court for leave to amend her bill of complaint, so as to add the name of James Watei field as a. co-complainant, which was also granted, and an amended bill was filed in which it is alleged that on the tenth of June,. 1875, they owned in fee simple the lands above described. The rest of the bill is substantially the same as the original bill, except that the necessary changes are made to adapt it to the two complainants instead of one. The record does-not show that any answer was filed to this amended bill, but it is presumed that the amended answer stands for answer to-the amended bill. No joint ownership by complainants in the lands conveyed was shown. On the contrary, it appears that they were not the owners in fee of the lands conveyed, but one of them ■owned 80 acres and the other 20 acres of such land, and there is no proof of what the purchase price of each parcel was. It also appears that, immediately upon the deed being exe-cuted, defendant went upon the premises described in the ■deed, and built a house thereon, and removed therein with his wife, Jane Wilber, and that they have ever since occupied and used it as a homestead. The contract of purchase being entire, according to complainants’ claim, and no part •apportioned to the respective owners, and there being no evidence of the relative value of each parcel at the time of the sale, and the bill alleging a joint ownership, this bill.to ■enforce a vendor’s lien cannot be maintained. But there is still another reason why there is no lien in this case. In Dunton v. Outhouse, ante, 419, we said that, when a vendor resorts to a court of equity to declare and enforce a vendor’s lien, it is necessary that he allege the contract of sale with reasonable certainty, and that the consideration and terms of payment must be alleged and clearly proven. Mowrey v. Vandling, 9 Mich. 39. The bill alleges that the money was to be paid in five or six years, at 10 per cent, interest, which is uncertain in itself; and the proof was that defendant was to have six or seven years in which to pay. Complainant James Waterfield testifies that defendant paid him, on May 6, 1876, $30 to apply on interest. The ■defendant denies this, and Mrs. Wilber testifies that they loaned Mr. Waterfield $30, and afterwards he repaid it, or .a portion of it, by allowing her to trade upon his credit at a certain store. Complainant also testifies that, about a week before Christmas in 1876, he sent John Walter to fetch defendant to his blacksmith shop, and that he did so, and that complainant then said to defendant: “William, I have sent for you to see if you could pay me any of that money, — the two hundred dollars that is back on the land, or interest.” He said: “No, James; I was not expecting to be called on now. I have been sick with the rheumatism all winter, and not able to do anything, and not looking or expecting to be called on now. I have paid the first year’s interest, and overpaid it, and there is not another year’s interest due yet, and you gave me six or seven years to pay the two hundred dollar? in, that is back, by paying you 10 per cent, interest annually, and I hope when the time comes it is due I shall be able to pay you.” John Walter testified substantially to the same thing. The defendant denied having any such conversation. If the complainant’s testimony as to the terms of sale is true, it is most unlikely that any such conversation occurred. Why should he take the pains to send for defendant to ask him to pay him any of that $200 that was back on the land, or the interest, when by his own testimony no interest was due, and the principal would not become due for nearly five years from that time? It is inconsistent with his own theory and with his testimony. The other testimony introduced by him consisted of admissions made in casual conversations by defendant or his wife, and is very unsatisfactory, not to say unreliable. Complainants were called upon to make out the contract relied upon by convincing proofs. We do not think they have-done so irrespective of the positive denial of defendant. 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Per Curiam. On June 12, 1965, plaintiff completed construction of a residential structure which he had contracted to build on defendants’ property. The contract included a clause providing for arbitration should any dispute arise between the parties. It appears from the record that a dispute over compensation for extra work did arise which prompted defendants to request an arbitration hearing in July of 1965. Plaintiff failed to attend the hearing on the appointed day and was also absent from a second scheduled hearing. Nothing further occurred until July 30, 1971 when plaintiff filed the present action seeking recovery for alleged extra work performed under the contract and appointment of an arbitrator. Defendants moved for accelerated judgment or summary judgment contending that the six-year statute of limitations period had expired on June 12, 1971 and that plaintiff’s action was thus barred. The trial judge denied the motion and further ordered that an arbitrator be appointed pursuant to MCLA 600.5015; MSA 27A.5015. Defendants appeal from the orders and findings made by the trial court. There can be no quarrel that the first count in plaintiffs action seeking contract damages was barred by the six-year statute of limitations. MCLA 600.5807; MSA 27A.5807. That cause of action accrued on the day the construction was complete which by plaintiff’s own admission was June 12, 1965. The remaining question is whether the plaintiff’s alternative equitable request for appointment of an arbitrator was barred by either the statute of limitations, waiver, or laches. MCLA 600.5815; MSA 27A.5815. There is general agreement that a demand for arbitration must be made within a reasonable time and may be denied if any equitable defense is applicable. 5 Am Jur 2d, Arbitration and Award, Cum Supp, § 21, p 42. This Court is persuaded that more than six years delay, equivalent to the statute of limitations in this case, was too long under the circumstances. Plaintiff had knowledge in 1965 of what his damages were and should have sought relief before any evidence could be lost or memories faded. The facts of the case and the actions of the plaintiff in refusing to attend two arbitration hearings also mandate a decision barring his relief based on laches, estoppel, and waiver. As stated in 25 ALR 3d 1171 § 2(a), p 1176: "It is well settled that a party’s contractual right to arbitration may be lost through his conduct, and delay in asserting a contractual right to arbitration is only one of several types of conduct which have been recognized as resulting in such loss”. (Emphasis supplied.) Plaintiff’s failure to act diligently and in good faith bars him from relief under law or equity. Reversed and remanded for judgment consistent with this opinion.

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Sherwood, J. The complainants file their bill, as assignees of Kellogg, Sawyer & Co., to set aside attachment and execution levies upon real estate described in the bill, and for an injunction preventing a sale of the property. The attachment proceedings were commenced on the sixth day of November, 1883. The suit was prosecuted to judgment, and an execution was issued and levied upon the attached property. On' the ninth day of November, 1883, Kellogg, Sawyer & Co. made a general assignment of all their property, for the benefit of their creditors, to the complainants. The lands attached were not only those included in the assignment, but also other lands which were not so assigned, but were claimed to be owned by Mrs. Sarah B. Kellogg, and occupied by her and her husband, Joseph E. Kellogg, as a homestead. In February, 1884, two petitions were filed to dissolve the attachment, — one by the assignees, to remove it from the assigned property, and the other by Joseph E. Kellogg, to have it set aside as to his residence, which belonged to his wife and was occupied by the, family. The only ground for suing out the writ of attachment, stated in the affidavit, was the belief, unsupported by any facts averred, that defendants “ are about to assign and dispose of their property with intent to defraud their creditors.” These were heard before the-circuit judge, who found as a fact that there was no showing which justified suing out the writ of attachment, and dissolved the same in both cases. Mrs. Kowe removed the cause into this Court by writ of certiorari. We then held that the learned circuit judge “was entirely correct in his inferences, and the plaintiff’s case does not appear to be meritorious,” and affirmed the decision of the circuit judge in the case of Joseph E. Kellogg; but, as regards the case of the assignees, Mr. Justice Campbell in his opinion says: , “ It is certainly desirable that those who represent creditors, as these assignees do, should have some expeditious and simple way of getting rid of unjust seizures, but we cannot see how the statutory remedy can be made to reach their equities. So far as they are concerned, we are compelled to hold that the judge had no jurisdiction, as judge out of court, to .give them relief.” The Court quashed the order in that case, but without prejudice to any other mode of redress. We further decided, ■in the case of the assignees, that the equities were clearly in their favor, and that we should have hesitated allowing the certiorari, and that we were not then prepared to sa.y the circuit court may not have some power to protect the assignees against such seizure. Rowe v. Kellogg, 54 Mich. 206. The levy under the execution was made on the twenty-•sixth day of May, 1884, and the bill in this case was filed on the fifteenth day of August following. After setting out the trust capacity in which complainants act for Kellogg, Sawyer & Co., giving a statement of the firm’s liabilities and assets, and the fact that the defendant is a creditor of the firm, and that her husband acted as her .agent in the management of her claim, the bill then states the legal proceedings taken to collect her claim, the com mencement of the suit by attachment, and the facts alleged in the affidavit made by the defendant to obtain the writ, and avers that those allegations are false, and were known to be so when the affiant made them, and that by such false statements, and procuring the attachment issued upon such false affidavit upon property not belonging to Kellogg, Sawyer & Co., but upon the property of the individual members of said firm, a fraud was committed upon the rights of complainants, and upon the court. The complainants further aver in their bill that the attachment lien in favor of the defendant upon said real estate is wholly without equity, and a fraud upon them and the other creditors whom they represent, both joint and individual; that it is the intent of the defendant to enforce said attachment lien against the property levied upon, and thereby collect her claim in full if the same can be realized from a forced sale of the property in the execution levied thereon, and which the defendant caused to be issued and procured to be levied for the purpose of continuing and. enforcing the attachment lien; that, by means of legal process, fraudulently and by imposition obtained from the court, the said defendant is about to cause the property in question to be advertised and sold upon the said execution levy, to the great injury of the complainants and all other creditors; and that the lien obtained under the levies upon the attachment and execution are void, and a cloud upon the title to the property they hold in trust, and which it is their duty as assignees to procure to be removed. The defendant in her answer admits the legal proceedings taken as charged, but denies any fraud in the institution of the suit, or any intent to defraud in the prosecution of the suit to judgment, or in her efforts to collect said judgment after it was obtained. Defendant admits making the statements contained in the affidavit as charged, and avers she had good reason for making them. She denies that her lien under the attachment is without equity, or a fraud upon complainants’ rights, or void, or a cloud upon complainants’ title. Defendant further admits that it is her intention to enforce her claim against the lands attached, under the liens she has obtained, and that the levy under the execution is only a continuance of the attachment lien. Defendant further insists in her defense that any rights which complainants have in the real estate are subsequent to those of defendant, and subject thereto, and that complainants have no right in a court of equity to litigate the matters contained in their bill, and further claims that a court of equity has no jurisdiction to dissolve an attachment levied upon real estate; that the issuing, levy, and dissolution of attachments are all matters resting upon statute, and no authority is given to a court of equity to interfere. The answer also prays the benefit of a demurrer. The proofs in the case were taken in open court before Judge Mills, who upon the hearing of the cause rendered a decree, which, after referring to the real estate to be affected thereby, and which was attached, and finding that complainants hold the legal title thereto by virtue of the assignment, proceeds as follows: “ And all of said real estate hereinbefore described having been levied upon by a writ of execution by the sheriff of the county of Kalamazoo, issued at the instance of the plaintiff in said attachment suit, the defendant herein, on the judgment rendered in the said attachment suit, and said complainants, at the time of the filing of their said bill, being in possession of said premises as assignees of said Kellogg, Sawyer & Co.; it is ordered, adjudged, and decreed that the said defendant, Florence V. Rowe, the plaintiff in said attachment suit, had no sufficient reason in law or fact to believe that Kellogg, Sawyer & Co., the defendants in said suit, were about to dispose of their property with intent to defraud their creditors, as stated by said Florence V. Rowe in her affidavit for, and as the ground for, said attachment; and in fact said Kellogg, Sawyer & Co. were not, at the time of the making of said affidavit for said attachment, about to dispose of their property with intent to cheat and defraud theiT creditors, but were about to make an assignment of all their property in trust, for the benefit of all their creditors alike, of which said plaintiff in attachment had notice from said Kellogg, Sawyer & Co. “It is further ordered, adjudged, and decreed that the levy of said attachment, and of the execution issued upon the judgment in said suit, upon said real estate above described, was without authority of law, and without right in said Florence Y. Rowe, this defendant, to proceed in such action, and the levy of said attachment and execution is fraudulent against the rights of the assignors conveying to complainants the real estate in question in trust for their creditors, and fraudulent as against the rights of the complainants as trustees, and the creditors they represent. “ And it is further ordered, adjudged, and decreed that said levy of attachment and execution upon said described lands is a cloud upon the title of the complainants thereto as ■said trustees, and said lien of attachment and execution in favor of defendant, Florence Y. Rowe, is without equity; and it is hereby decreed that said attachment and execution levy, and lien thereof, be set aside, vacated, and held for naught, and the said lands be, and the same hereby are, free and discharged from the incumbrance thereof.” Mrs. Rowe appeals from the decree, and asks a review of the case in this Court, and her counsel insist that the decree .should be reversed, and complainants’ bill dismissed, upon two grounds: “ 1. Because a court of equity has no jurisdiction. “3. Because, from the evidence in the case, if a court of equity had jurisdiction, there was sufficient reason for holding the attachment good.” Upon the last proposition the record has been carefully inspected, and I have no doubt of the correctness of the finding of the circuit judge. In a case commenced by attachment, the affidavit is necessary to confer jurisdiction; and when it is made, as in this case, upon the ground that the affiant has good reason to believe, and does believe, that the defendants are about to assign their property with intent to defraud their ■creditors, the law requires it should be made in good faith, and that the affiant should have good and substantial reasons-for the belief expressed. It is an extraordinary remedy that-is resorted to, when the creditor is allowed, through the agency of a court, to reach out and take control of the property of his debtor, and incumber it to its full value, before he has established his claim against the debtor. The court permits the use of its process for this upon the showing made in the affidavit, and upon the good faith of the affiant, and assurance that the creditor can furnish good and substantial reasons for the statements made in the affidavit. This suit is the second time the defendant has been asked to furnish the reasons for her belief stated in the affidavit, and the evidence of her good faith. In the first instance neither the circuit judge nor this-Court could find any sufficient reasons for the statements made, nor the necessary facts and circumstances to show good faith. In the present case the learned circuit judge finds that the defendant “had no sufficient reason in law or fact to believe that Kellogg, Sawyer & Co. were about to dispose of their property with intent to defraud their creditorsbut, on the contrary thereof, he found they “were about to make an assignment of all their property in trust, for the benefit of all their creditors alike, and of which said plaintiff had notice,” and that the levy of the attachment, the prosecution of the suit, and the issuing of the execution and levy thereunder, were without authority of law, and without the right of the defendant so to do, and that the levy under both writs was fraudulent against the rights of complainants, and is a cloud upon the title to the property. I think the circuit-judge, as I have said before, is fully sustained by the record, and he might with great propriety have added that the procuring of the writ of attachment, under the circumstances, was a fraud upon the court. We will now consider the first ground of objection stated'. by the learned counsel for the defendant, viz., that the court has no jurisdiction to relieve against the wrong complained of. It was expressly decided by this Court in Rowe v. Kellogg, 54 Mich. 206, that complainants had no remedy at law, and were we now to accept the legal conclusion of the counsel for defendant there would be no remedy in equity. This would be to substantially admit that our system of jurisprudence, although it embraces the common-law and the entire field of English chancery jurisdiction, has in the end proved a failure. I am not yet prepared to acquiesce in adecision fraught with such consequences. It is true, proceedings by attachment are statutory, and assignments for the benefit of creditors have been placed under the control of legislative provisions; but I have failed to find anything, in either of these statutes, depriving a court of equity of jurisdiction in cases of fraud committed upon the rights of either party, or upon the court, in taking proceedings under them. The rights of a person to his property, and to the proper remedy for its protection, are as old as the. law itself. They are secured in the organic law of our State, and I have yet seen no disposition in our legislation to depart from them, when its acts are properly construed. In this case liens to the amount of the value of the property attached were obtained upon it through the fraud of the defendant. The property, from that day forward, except the use of it, was as completely under the control of the defendant as though she were the sole owner. The complainants could not sell it, nor obtain a loan upon it, nor rent it for a term of years, with any degree of safety. The lien was properly entered of record, and prima facie, after the judgment was obtained, was for that amount. True, the lien was void in fact, but it is prima facie a damaging cloud upon the complainants’ title until removed by the action of the court. Why should not equity take jurisdiction of the case, and declare the lien obtained upon the complainants’ property void by reason of the fraud perpetrated in obtaining it, and remove the cloud from the title of complainants’ property, which so seriously injures its sale? Fraud is certainly one of the grounds of original equity jurisdiction, and it makes no difference whether it arises under statute or common law; and equity, when properly administered, never fails to relieve a person’s land from unjust claims and clouds in disparagement of his title created through fraud. Nowhere in the attachment law, or under the legislation relating to assignments by insolvent debtors, or in any other statute, have I been able to find any provision depriving a court of chancery of its jurisdiction in cases like the present; and in no case where a remedy is of so long standing, and absolutely necessary to furnish the proper redress, will such a change be presumed. It is claimed by the defendant that the bill is filed merely to obtain the dissolution of an attachment. I do not think this view'takes in the proper scope of the bill; but if this were true, and the attachment levy was obtained by false affidavit, and fraud practiced upon the opposite parties and the court, can there be any doubt that the fraudulent and illegal proceeding would be a proper subject for the consideration of a court of equity, and fall within its jurisdiction? I think it clearly would, and that there is nothing contained in our statutes depriving it of jurisdiction in such a case. In this case, however, the dissolution of the attachment is only one of the consequences which necessarily follow the discovery of the fraud. It was not only the duty of the court in this case to dissolve the attachment on discovering the fraud and imposition practiced upon the parties and court, but also to remove from the records all evidence of any lien created thereby, and to restore to complainants all rights of which they had been deprived by the illegal proceeding. The fraud practiced upon the complainants and their assignors required this; but a fraud upon the court has always been regarded as the most odious of all frauds under forms of law, and should always receive the just condemnation of all legal tribunals wherein it is attempted. Galatian v. Erwin, Hopk. Ch. 54; Mitf. Eq. Pl. 131; Wright v. Hake, 38 Mich. 525; Adair v. Cummin, 48 Id. 375; Edson v. Cumings, 52 Id. 52; 1 Story, Eq. Jur. § 438; State v. Phœnix Bank, 33 N. Y. 26; Loyd v. Mansell, 2 P. Wms. 74. There is no proceeding in any court procured by fraud and imposition which, as between the parties, will not be set aside upon a sufficient disclosure of the fraud, if injury has been sustained by the party imposed upon thereby. 1 Story, Eq. Jur. §§ 189-190a, 439; Madd. Ch. Pr. 204; Will. Eq. Jur. 147; Huguenin v. Baseley, 14 Ves. 273; Mortlock v. Buller, 10 Id. 306; Lawley v. Hooper, 3 Atk. 279; Belcher v. Belcher, 10 Verg. 121. See, also, New York Exchange Co. v. De Wolf, 31 N. Y. 273; Kennedy v. Daly, 1 Schoales & L. 355; Dobson v. Pearce, 12 N. Y. 156; Davis v. Tilesion, 6 How. 114; Fenemore v. U. S., 3 Dall. 357. I have no doubt of the right of the complainants to the relief prayed, and, in my judgment, the decree rendered by the circuit judge should in all things be affirmed, with costs.

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Morse, J. Just, on the twelfth day of November, 1883, sold to Porter a team of .horses, a wagon, and harness for $415, and received in payment therefor three promissory notes, secured by a chattel mortgage upon the property. The parties on the same day entered into the following written contract: “Greenville, Mich., November 12, 1883. “ I agree to take of Frank Porter cull shingles for one note of $50, due December 2, 1883, and one note of $250, due June 1, 1884, at any time he may deliver them, at Lakeview, in car-load lots, to be indorsed on said paper at 50c per thousand. And the note of $ 115 to be paid in second shingles at $1.50 per thousand. Those prices to be considered payment if the shingles are delivered by the time the notes mature. If said .Porter fails to deliver shingles as agreed, upon maturity of the paper, he is expected to pay money, or stipulate as to price of shingles. “W. J. Just. “Frank Porter.” July 27, 1885, Just brought replevin for the property, claiming under his chattel mortgage, and that the same was in default for non-payment. He obtained the property under his writ. The defendant claimed that, under the contract, he had delivered at Lakeview, previous to the first day of June, 1884, 300,000 cull shingles, which, with a tender of .$32.75,. made before suit to the plaintiff, paid the notes, in full, and released the property in question from the mortgage. Defendant had judgment in the circuit for $374.12, having-elected upon the trial to waive a return of the property, and take judgment for its value. Only two errors are insisted upon in the argument here. First, that the court erred in leaving the meaning and intent of the parties in making this contract to be determined by the jury. We find no error in this respect. The court instructed the jury that, under the contract, it was no part of the defendant’s duty to load the shingles upon the cars. This was undoubtedly correct. The defendant claimed that he notified the plaintiff that the shingles were delivered and piled up at Lakeview, and that the plaintiff accepted them upon the-contract. Plaintiff denied that he accepted them. The shingles in dispute were burned at Lakeview in August, 1884.. The court, upon this branch of the case, said: “Now, then, gentlemen, how is it as to the 800,000 cull shingles? You have the contract that has been read in evidence to you about those shingles being delivered. What was the intention of the parties? Was it their intent that the shingles should belong to Mr. Just? Was it understood by both parties that Just had accepted them as his property?' Now, the evidence shows that this contract in writing was made between them that they were to be delivered at Lake-view in car-load lots. You have heard where the shingles were, the condition they were in, and all there is about that-matter. Now, what was the intent of the parties? Was it their intent, under all the evidence in the case, that these shingles operate as payment upon that mortgage, and be applied upon it? If that was their intent, if that was their understanding, if their minds met upon that proposition, then those shingles should be so applied upon that mortgage they should be credited thereon as payment; but, if it was not, then they ought not to be. Now, if you do not apply the shingles, then the plaintiff must recover; if you do, they would not pay the amount due, but it is claimed more than the amount due was tendered before suit was brought, Julv 21, 1885.” - . The meaning and intent of the contract was not submitted’ to the jury, but the intent of the parties as to the acceptance-of these shingles upon the contract was very properly left to them. It was for them to determine, as a question of fact, whether these shingles were, by agreement of the parties,, applied or to be applied in payment of- the notes and mortgage. The second objection to the judgment is that, under the- charge of the court, the defendant recovered, not only the value of the property, but the use of it from the date of its seizure upon, the replevin writ to the date of the verdict. The trial proceeded, without objection, upon the theory apparently that this was the true rule of damages, and no exception was taken to the charge of the court in this regard. The error is assigned under Act. No. 101 of the Session Laws of 1885, which authorizes assignment of errors upon the charge of the court without any exception being taken thereto upon the trial. We have always doubted the propriety of this statute. It was enacted, without doubt, in the belief that it would in some way subserve the ends of justice, and be of benefit to litigants. Its effect has been, not only to increase litigation, but to unfairly and unjustly deprive parties of their rights. It can readily be made an aid to practices unfair to the trial courts, and not desired in the administration of justice. An attorney may purposely refrain from bringing some defense in law to the notice of the trial court, in a case where the facts seem against him, in order to gain a new trial if the jury decide the merits adversely to his client. There was, it can be said, no purpose of this kind in this suit, and the action of the attorney for the appellant lacks nothing in fairness or honorable action in the trial of the same; but the working of this statute to ill results is shown in another way. After the trial of this suit, we held, in the case of Hanselman v. Kegel, 60 Mich. 550, that in a replevin suit under our statutes, where the property was not found or taken upon the writ, and the plaintiff proceeded in the action for the value of the chattels, the measure of damages was the value of the same at the date of the unlawful taking, with the interest upon such value. This decision was filed April 15, 1886. The bill of exceptions in this case was settled June 17, 1886. The judgment was rendered December 17, 1885. The counsel for the appellant cannot be criticised for taking advantage of this decision under this statute. But, as the case was made in the court below, the defendant was entitled to a judgment, and, if the matter of damages had been contested and brought to the notice of the trial judge, it is to be presumed that he would have laid down the rule in accordance with the holding of this Court. In such case there would have been no error in the proceedings, and therefore an affirmance here of the judgment below, and an end put to the controversy. If we could distinguish the amount allowed by the jury for the use of the property from the value of the same, as found by the jury, we should feel disposed, as in the Hanselman Case, to enter a judgment here for the value simply; but we cannot separate the items, and must grant a new trial if the doctrine of the Hanselman Case be sound, and applicable to the case at bar. The counsel for the defendant seems to doubt the correctness of our ruling in that case, and insists, further, that it is not applicable to the case now before us. A re-examination of the authorities and our statutes convinces me that the rule of damages laid down in the Hanselman Case is the just and proper one. Under section 8347 of Howell’s Statutes, the defendant, if he waive a return of the property, may take judgment for its value. There is no provision made for the recovery also of damages for the detention of the property. In Halselman v. Kegel the case differed from the one at bar in the fact that the plaintiff did not recover her property under the writ, and therefore pursued her action under the statute for the value thereof. In such a case there seems to be no question but the rule of damages is the same as in trover. In this case the property was taken on the writ by the plaintiff, but on the trial defendant elected to take judgment for the value of the property. The property was such that it was the subject of valuable use. There are authorities holding, in such a case, that the value to -be assessed is the value at the time of trial; and the damages for the detention, being the use, can also be added thereto in the verdict. Cook v. Hamilton, 67 Iowa, 394 (25 N. W. Rep. 676). The reasoning of the Iowa case is not satisfactory to me. When the defendant has his option, upon the trial, to take the property or its value, the correct rule,, in my opinion, is the one adopted in the Hanselman Case. The suit in replevin proceeds upon the theory of adjudicating the rights of the parties as they were at the date of the issue of the writ. In the present case the value of the property was proven of that date. If the defendant elects to take the value of the property, he, in effect, thereby makes a sale of it to the plaintiff at the date of its taking, and its value at that time, with interest up to the date of the verdict, is certainly a fair compensation. If he prefers to take the property, and the value of its use while detained, he can do so. The option is his, and not the plaintiff’s. There is no justice in his taking the value of the property, selling it to the plaintiff against his will, and also charging him with the use of it in addition. Bigelow v. Doolittle, 36 Wis. 115, 120; 3 Suth. Dam. 560, and cases cited in note 4; Hanselman v. Kegel, 60 Mich. 540, 550, and cases cited. It is argued that the counsel for the plaintiff waived this error of the trial judge by not interposing any objection to the introduction of the evidence of the value of the use of the property upon .the trial. But if, at the close of the trial, the counsel for defendant had not waived a return of the property, such evidence would have been competent, and the value of the use could have been recovered. Plaintiff’s counsel could not, at the time the evidence was offered, have made any valid objection to its reception, and the statute unfortunately expressly provides that he need not except to the charge of the court. It follows, for this error as to the rule of damages, that the judgment must be reversed, and a new trial granted. Campbell, C. J., and Chahplin, J., concurred. Sherwood, J. I do not hold the same opinion as do my brethren in regard to the statute allowing exception to betaken to the charge after verdict. I think it tends to secure rights of parties which might, through neglect or inadvertence, be otherwise lost, and regard the statute with favor. I concur, however, in the result.

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Campbell, C. J. This is the same controversy, in a different form, which is reported in Farwell v. Myers, 59 Mich. 179. In that case a claim was prosecuted under a general assignment for a balance insisted on as remaining due under a contract which was made by a purchaser with intent to defraud vendors, and to get goods without paying for them- The debtor made a general assignment, and the creditors replevied so much of ■ the goods as they could trace to the hands of the assignee. They then filed their claim as vendors for the price of so much of the property as they had not replevied. The circuit court held that the claim could not be based on the contract, which had been rescinded for the fraud, and this Court divided equally upon that question, thus affirming the judgment. But all the members of this Court agreed that the fraudulent purchaser was responsible for the conversion of the goods if he had converted them, and. that a claim might lie on that basis. Thereupon a new claim was filed, and the parties by counsel agreed upon the facts, from which it appeared that Myers had, before the assignment, sold the property beyond what was assigned, and the amount of the sales was agreed upon. Upon this claim and the stipulated facts, the circuit court gave judgment for the proceeds of the conversion. Error is brought, and the errors assigned all go to the correctness of the judgment upon the agreed facts. The amount is not disputed, but it is insisted the claim was cut off by delay, and barred also by the former adjudication. So far as delay is concerned, it is due entirely to a matter of legal form in describing the nature of the debt, and to the disallowance in the shape first presented. We think there is nothing in the statute to prevent its allowance, although the delay may have left less money in the assignee’s hands than will place the claimants on as good a footing as those who have already received dividends. Upon this we are not fully informed. But it is impossible to hold the claim barred by the former adjudication. That simply held that no suit would lie on the contract as an original contract after it was rescinded for fraud. The present claim is not based on the contract, but on the conversion of the property of the claimants, whereby they are entitled to require the payment of the value or proceeds, and they have now elected to proceed for the conversion of the goods for their money, which could be demanded either in trover or assumpsit. The claim was recognized in our former decision as a proper one, and we have no doubt it was properly allowed below. There is some doubt whether the record is in such a shape as to leave all the questions open which were argued. But,as the objections do not appeal to any sound rule of law, we have not thought it worth while to dwell on their formality. The judgment must be affirmed. The other Justices concurred.

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Campbell, O. J. Plaintiff brings certiorari to review the proceedings laying out a road on the town line between Eaton and Ingham counties. Several irregularities are set up, and it is admitted the records are not perfect. But it is claimed the plaintiff shows no such equities as require this Court to intervene for his protection. It appears that the application to the highway commissioners to lay out this road so as to connect with roads north and south was made in 1885, and notice given for the meeting, to be held November 10,1885. On that day they met and established the road, giving damages to various persons, including plaintiff, who was awarded $40. On the 19th of November, 1885, B. H. Skinner appealed to the town boards, who, on December 3, 1885, affirmed the action of the commissioners. Plaintiff shows by his petition for certiorari that he was personally served with a notice which informed him seasonably of the meeting of November, 1885, being only defective in not describing it as a joint meeting. In December, 1885, he was also tendered an order payable in February, 1887, for $40 damages, which he refused. On December 22, 1885, he was notified to remove his fences. He applied for the certiorari, April 29, 1886. The petition does not show that plaintiff is at all damnified by the proceedings, or that the estimate of damages was too low, and it shows affirmatively that he had personal notice of the meeting. He relies entirely on technical objections. While the law requires correctness in these proceedings, yet the action of the local authorities is very apt to be a little careless, and, unless complaints are promptly made, expenses are incurred and steps taken to lay out and complete the highways for travel, whereby the whole neighborhood may become incommoded by subsequent interruption. Where there is no reason to suppose any wrong has been done by laying out a town-line road, which it is contemplated by law will usually be done when settlements warrant it, we do not think it desirable to interfere, by certiorari, if at all, after any needless delay, and after general action is likely to have been had in reliance on the legality of the road. We do not usually meddle with local administration for trifling reasons. In the present case we think that no damage appears to have been done to plaintiff, and he has failed to act with any degree of diligence. There is no reason to doubt the fairness of the action complained of. We shall therefore dismiss the writ as improvidently granted. The other Justices concurred,

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Campbell, O. J Tne plaintiff in certiorari having sued out and levied an attachment against the property of defendant, the latter procured a dissolution of the attachment by a circuit court commissioner, from which plaintiff appealed. The hearing of this appeal appears to have been delayed by a series of dilatory proceedings from December, 1884, until January, 1886, when the appeal came on for trial before a jury. Instead of proceeding with the trial, the circuit court undertook to decide that the plaintiff had waived and abandoned its attachment, and, without allowing any testimony to go to the jury, affirmed the dissolution, and ordered the property to be restored to defendant. The return to the certiorari recites a long series of transactions in the attachment suit and in other proceedings, which, if admissible at all, could only be properly introduced before the j ury on the trial of the appeal. The case comes in all respects within the •decision in Calvert Lithographing Co. v. Drs. K. & K. Medical Ass'n, 61 Mich. 336. We deem it proper to say, however, that, even if the circuit judge could have decided the questions before him on the facts which he certifies, we do not think they showed any •abandonment. The dissolution of the attachment rendered it impossible to deal effectually with the attached property, which appears to have been taken off by other parties, and, ■so long as these appeal proceedings were pending, plaintiff was helpless. Its resort to other means of collection, which proved ineffectual, could not be treated as an abandonment •or waiver of the appeal under such circumstances, and the •causes which it offered to show were sufficient to sustain its .attachment. Without considering whether the sufficiency of the affidavit «itself could be looked into on this appellate proceeding, we have no doubt it was sufficient. It is quite possible for •several good reasons to co-exist for suing out an attachment, •and we know of no reason why one should destroy the other when all are consistent. The order dissolving the attachment, and affi ming the •commissioner’s order, must be quashed, with costs of both •courts. The other Justices concurred.

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Morse, J. No question is made in this case as to the sufficiency of the petition, notice, etc.; but it is claimed that the commissioner, in proceedings to establish and lay out a highway over the right of way and track of the plaintiff in error, arbitrarily disregarded the rights of the railroad company in his assessment of damages, and failed and neglected to award it just compensation for its damages by rea- . son of the laying out of the proposed highway. The writ of certiorari was improvidently granted, and ■must be dismissed, with costs. The statute has provided for an appeal from the commissioner to the township board. When the only grievance lies in the • award of damage, the proper remedy is by such appeal. “It must be presumed that, if the commissioner refused to consider the proper ^elements of damage, the board would have done justice on the appeal.” Detroit & B. C. R. R. Co. v. Graham, 46 Mich. 642. The other Justices concurred. How Stat. § 1303. See Chicago & Grand Trunk Ry. Co. v. Hough, 61 Mich. 507.

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Morse, J. The plaintiff brought suit for damages for the negligent killing of her son, a boy 12 years of age. The jury were directed by the court below to find a verdict for the defendant. The plaintiff’s intestate, and another boy, Edward Deidrich, rode on a freight train of defendant to Delray, waited around there until the train was ready to return to Detroit, and then they climbed upon the freight car next to the engine, with the intention of riding back to the city. They remained on the top of this car some time; but, on account of the sparks flying back upon them from the smoke-stack of the engine, they left the car, and got upon the front of the engine, which was pulling the train, tender foremost. They were ridipg on the front part of the engine when it collided, at the foot of Twenty-first street, in the city of Detroit, with another of defendant’s engines, by which collision the plaintiff’s intestate was killed, and Deidrich lost a leg. The boys rode out to Delray in the afternoon, and started on their ride back about 6 p. m. Delray is about three miles outside of the city limits. The collision occurred October 15, 1883. It was shown upon the trial that plaintiff’s intestate, and other boys of like age, and older, frequently rode on these trains to Delray, and back again to the city, and that at least one conductor allowed them to do so. Deidrich was a witness, and testified that Bailey, the one that had permitted the boys to ride on the train, was the conductor, but thinks the brakeman on the last car had charge of the train coming into Detroit that night. “ The brakeman who brought the train in that night saw me on the train. He was nearly on the last car. He saw me get on, I know, because he was looking right at us. I did not see any other brakeman there. * * * I saw the engineer. Well, he was looking. I don’t know if he was looking at us. We were on the first car next to the engine. I was on top of the car, and Eclifii was with me. The engine was right in front of it. * * I think the smoke-stack would have been in the way to prevent the engineer from seeing us on this car. There was a window that they looked out of in front. There was nothing to j>revent his looking out of that window, and seeing us on the car. If he had looked back he would have seen us. From where he stood to about where we sat was about fifteen feet. I saw the fireman.” At the time of the collision the boys were sitting right in front of the boiler on the engine. From there- they could not see the engineer, or he them. When the boys rode out to Delray, the train was in charge of Bailey. They rode on top of a car, some half dozen or more cars from the engine. Deidrich swears Bailey saw them at this time, and that he was also on top of the cars, between the boys and the engine, and standing up. “ We had ridden on the train before this time often. I could not tell you how many times. We usually rode on top of the freight cars, and sometimes got on the front part of the engine. * * * When we got on the cars from time to time, we were where the conductor could see us getting on. When we got on the car.--, he would be on top of the train. He could see us get on the cars. * * * Generally there would be a brakeman and one conductor, — a brakeman on the back end.” The same conductor and train' hands who ran the freight train out to Delray in the afternoon ran the 6 o’clock p. m. train into the city. The rules of the defendant company forbid conductors, brakemen, engineers, and all others connected with the running of trains, to permit or allow any person or persons to ride upon the engine or tender, except certain officers and employés of the road, without permission from the general or division superintendent, or in ease of storms or accident. Freight trains were only allowed to carry passengers when specified in the time-tables. This train was not so specified. These boys were not passengers in the strict sense, however, as they paid no fare, and, if not stealing rides, were taking free passage for their own sport, under license from the conductor or other train hands. Mr. Dewey, who at the time was night yard-master, testifies that he acted as conductor from Delray into Detroit, the night of the accident, of this train upon which plaintiff’s-intestate was riding. He swears that there were 15 cars in the train. The switch-engine was pulling the cars down, moving backwards, tender foremost. A part of the cowcatcher was taken off, and a step put on for the accommodation of the switchman. A boy or man could sit there. Dewey says he was on top of the cars, about the middle of the train, coming into the city. He claims he did not see the-boys until after the accident, and that it was dark when the-train left Delray. “We lit the head-light.” Thinks “it. was sufficiently dark to interfere with seeing persons the-length of seven cars with distinctness.” During the trip. Dewey remained on top of the cars. He moved both ways-on the cars, probably three or four car-lengths, and up to the third car of the engine. “ I might have been on the first car during the trip. Would not say positively. ” The conductor Bailey was not sworn, but there was evidence tending to show that he and his brakemen were cog nizant of boys frequently riding on the trains, and permitted them to do so. Deidrich was recalled after the testimony of Dewey, and recognized him as the man he saw on the top of the train, whom he thought was a brakeman in charge of it. H. H. Jeanette, the engineer on the train, testified that he did not see either of the boys upon the train until after the collision. He then saw Deidrich getting off. He had a copy of the rules, and never knowingly permitted any boys to ride upon the train. He admitted that he had seen boys riding upon the top of the cars, and in such cases he did not stop unless he received a signal from the conductor. “ I saw two boys at Delray when we arrived there. Part of the time they were on top of the cars, part of the time on the ground. * * * I supposed afterwards these boys hurt and killed were the two boys; I don’t know that they were.” He further testified that he had seen boys riding on top of the cars both ways, and he did not stop to 'put them off. He never stopped to remove boys between Detroit and Del-ray, or coming back into the city, until he got into the yard. Frank Weissel, the brakeman, testifies that he knew the two boys, and saw them playing that evening at Delray just before the train started. “ I told them if I seen them on the train I should either put them off or kick them off.” Did not see them upon the train until after the collision. He did not pass up and down, but was stationed upon the rear end of the train. He did not know that the boys came out with their train, but knew they got out there some way, and felt satisfied that they were waiting to ride back into the city on the train. f‘I made no effort to see whether they attempted to get on board of our train. I had no time. They were not the first boys 1 had ever told to keep off the trains. * * * I saw them waiting for the train to start'to the city after I had told them not to get on the train, and I said nothing to them.” He is not certain, on cross-examination, whether he told both of the boys not to get on the train, but is positive that he told one of them so. On being asked if, as a matter of fact, he did not know these boys were on the train, he said : “ Morally, I knew that they were there, but I did not see them there.” The circuit judge thought that the plaintiff’s intestate was a trespasser, and that the defendant did not know he was on the train, and ruled that, under the pleadings and the evidence, the plaintiff could not recover. He also intimated that, if the brakeman and engineer knew he was there, it would make no difference. There is no doubt but the collision was the proximate cause of the death of the boy, and that such collision was caused by the negligence of the employés of the company. The counsel for defendant claims that the boy was a trespasser, and the defendant owed him no duty except not to wantonly injure him, and that a boy of 12 knows as well as an adult that the position occupied by decedent upon the train that night was a dangerous one, and he was therefore guilty of contributory negligence. There was evidence, as before shown, to the effect that this boy and others had been permitted to ride upon this train before, and were in the habit of so doing frequently. They rode out to Delray upon this train in the afternoon, and were seen, and known to be waiting to ride back to Detroit upon it. Deidrich testified that he was not forbidden to get on the cars that nigjit. I think there was evidence tending to show that these boys were riding by implied permission of the parties in charge of the train, and the brakeman admits that “morally” he knew the boys were there, but claims he did not see them. If permission was granted or implied by the action of the defendant’s employés, the boy could not, in my opinion, be a trespasser. But, in the view I take of another branch of the case, it is not necessary to ■ discuss this question further. If the plaintiff’s intestate was guilty of contributory negligence, there can be no recovery. He was riding in an extremely unsafe and dangerous place in the first instance; and, when he changed his position to the front of the engine, he occupied a still more dangerous seat. An adult person could not recover, under such circumstances, for the negligence of the defendant and its employés, unless such negligence was gross or wanton. There can be no claim of such negligence in this ease. But it is claimed by plaintiff’s counsel that a child of 12‘ years cannot be charged with the same discretion and judgment as an adult, and that it is sufficient if the boy in this case exercised reasonable care according to his age and capacity. And it is further contended that this reasonable care, to be so exercised, is ,a question in all cases to be determined by a jury under the particular circumstances in each case. It is true that the caution required is according to the maturity and capacity of the child, to be determined in each case by the facts in such case; and the degree of discretion-in avoiding danger depends upon the age and knowledge of the child. And when there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in getting in the way or reach of such danger, or as to the age or capability of the child, the question of the contributory negligence of the person injured or killed should be submitted to the jury; or if all the circumstances of the case, when the facts are undisputed, are such that ordinarily prudent men would be liable to differ in their views as to the negligence imputed, then such negligence should not be determined by the court,, but the question left to the jury under proper instructions. In this case there is no conflict of evidence upon these points to be considered in determining whether or not the boy was negligent. The plaintiff’s intestate was of ordinary intelligence, and usually bright for his age, as his mother testifies. Although delicate in health, he was “ full of animal spirits,” and out of doors a great deal. He was, of course, more heedless and thoughtless of danger than a man; but he was living in the immediate vicinity of railroad trains, and accustomed to them. He must be presumed to have known of the great peril and danger of riding where he did. The fact that it was a place of great danger js a matter of common knowledge, and is intensified by the fact that no one upon this train .was injured but these two boys, who, in the position they were, could not well escape hurt by such an accident. A boy of 12 years knows as well as an adult that upon the top of freight cars, or in front of the engine, when reversed* between that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless, and not as cautious as a man, in the face of such danger, is not of itself enough to excuse him. I can see no reason for-submitting a question as plain and clear as this one to a jury. There could be but one result if the judgment and oaths of the jurors were not warped and disregarded because of the natural sympathy that goes out instinctively towards the sufferer in such a case as this. The plaintiff’s intestate was guilty of contributory negligence in riding as he did upon the train, and no fault of the company or its employés, short of gross or wanton carelessness, can excuse him from the results of such negligence. Messenger v. Dennie, 137 Mass. 197; Masser v. Chicago, R. I. & P. Ry. Co., 68 Iowa, 602 (S. C. 27 N. W. Rep. 778); Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504. The circuit judge was therefore correct in directing a verdict for the defendant, because the negligence of plaintiff’s intestate must be considered as contributing to his death. The judgment is affirmed, with costs. The other Justices concurred.

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Champlin, J. This case was submitted upon briefs, and we shall therefore notice only those assignments of error which are relied upon in the brief of defendant’s counsel. The action was brought to recover damages for a malicious-prosecution. Section 9173 of Howell’s Statutes enacts that every person who shall willfully commit any trespass on the land of another by carrying away any roots, fruit, or plant there being, in which he has no interest or property, without the license' of the owner, of the value of five dollars or more, shall be' punished by imprisonment in the county jail not more than 60 days, or by fine not exceeding 8100. On the twenty-fourth of July, 1885, the defendant made" complaint on oath, before a justice of the peace of the city of Adrian, that Eliza Wilson, on the twenty-fourth of July, 1885, with force and arms, unlawfully did enter upon the land of the said Levi L. Bowen, situated in the township of Franklin, in Lenawee county, and did then and there carry away 50 quarts of whortleberries (sometimes called huckle-' berries), then and there growing on said land, of the value of five dollars, without the license of him, the said Levi L. Bowen, — she, said Eliza Wilson, then and there not having any interest or property in said whortleberries, — contrary to the form of the statute, etc. TJpon this complaint a warrant was issued by the justice, and Mrs. Wilson was apprehended and brought before the magistrate, when an adjournment was had, and she was released from custody upon her own recognizance to appear. Another adjournment was had, and on the adjourned day the prosecuting attorney requested a dismissal of the case, which was done by the justice, and the prisoner discharged. Thereupon she brought this action. The defendant, when on the stand as a witness in his own behalf, was proceeding to testify to the conversation which he had with the prosecuting attorney previous to entering the complaint against Mrs. Wilson, and he had narrated that he said to the prosecuting attorney that he— “ Had had to have her arrested three years ago for the same thing, and he wanted to know what was done with her at that time, and I told him she was let off by paying the ’ costs and promising to keep away.” The witness then testified that he and the prosecuting at-' torney went to the magistrate’s office, and witness asked the justice if he remembered that case, and he said he did. Counsel for defendant then asked this question: “You may tell what other conversation there was between you and the prosecuting attorney, or between you and the justice.” This question was objected to, and a motion was made to strike out what the witness said he told the prosecuting attorney in regard to Mrs. Wilson’s having been arrested, and what she did, as incompetent. The motion was granted, and the testimony stricken out. It is urged by counsel for defendant that the testimony was proper, as bearing upon the question of malice. We cannot see as it has the remotest bearing upon the question of malice. The fact itself, or the conversation in reference to it, certainly had no tendency to disprove malice. The two transactions had no relation to each other, and the testimony was rightly excluded. The testimony of Helen Mattis, as to her seeing Mrs. Wilson upon the defendant’s premises picking huckleberries any other season than the one complained of, was properly excluded, as also were the records before the magistrate of the proceedings had before him three years previously against Mrs. Wilson for a like offense. This testimony, it is claimed, was relevant upon the questions of probable cause and malice. The testimony had no legitimate bearing upon these questions, and was wholly irrelevant upon any point involved in the issues being tried. Patterson v. Garlock, 39 Mich. 449; 1 Whart. Ev. §§ 54, 56, and cases cited. Eliza Lanning, a witness on the part of plaintiff, was asked, on cross-examination by defendant’s counsel: “Did you tell Mrs. Mattis, at that time, that Augusta Bowen was in the swamp, driving the plaintiff and others out ?” To which she answered: “ I told her Augusta told me they were not going to allow any one to pick. I didn’t tell her that she was there driving them out. I said they did not allow any one to pick berries on Mr. Bowen’s side.” Helen Mattis was then placed upon the stand, and asked: “"What did she [Eliza Lan.ning] tell you, if anything, about Augusta Bowen being up there, and driving out the plaintiff and others ?” This question was offered for the purpose of discrediting the witness Eliza Lanning in a material matter. It was objected to as incompetent, and ruled out. The conversation between Eliza Lanning and Helen Mattis about what Augusta Bowen did was wholly immaterial to the issue, and the testimony was not admissible for the purpose stated. 1 Greenl. Ev. § 455; Best, Ev. § 644. Counsel for defendant requested the court to charge the jury that— “If the defendant acted in good faith, and from honest motives, that would be a defense, and entitle him to your verdict, even if the plaintiff was in fact innocent, and there was not even probable cause for making the complaint.” This was refused, and rightly so. Good faith and honest motives, where there is not even probable cause for making a complaint of a criminal character against a person, is not a defense to an action for malicious prosecution. The fallacy of the proposition is so plain that no argument is required to refute it. The eighth request to charge was properly refused, for the reason, among others, that it was based upon evidence not in the case. The eleventh request is as follows : “If the defendant had information, from persons whom he deemed truthful and worthy of credit, that the plaint-, iff had, during the summer of 1885, been repeatedly, and two or more times when she was positively identified by his informants, seen in his whortleberry swamp picking and carrying away berries, and two or more other times when, though his informant was not able to identify her positively by having seen her face, yet, from, dress and size, his informant believed it to be she, and the defendant was satisfied from such information that it' was the plaintiff, and such acts of the plaintiff were without his permission and against his will, and such different occasions were in the same season, and within a few days of each other; and that on several of these occasions, when so found picking berries, she had her daughter with her, a girl aged fourteen years, who was also picking berries, and that, when seen and fully identified by the informants of the plaintiff, she and her daughter had each several quarts of berries picked, and remained in the swamp picking berries for a considerable time after the berries were so seen and the amount noticed by his informants, .and the berries picked were carried away by the plaintiff and her daughter, and the defendant had no means of knowing what quantity of berries had thus been taken by the plaintiff other than the information so received, and an estimate therefrom, and he actually believed, from such information and estimate, that the quantity so taken by her during the season was over fifty quarts, — this would be probable cause for making such complaint.” The court charged that, — “ To constitute probable cause in a criminal prosecution, there must be such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged. “A person may have probable cause for making a criminal complaint from information received from others merely; but in such case he must honestly believe the information thus obtained to be true, and the information must be of that character, and obtained from such sources, that business men generally, of ordinary care, prudence, and discretion, would act upon it under such circumstances, believing it to be reliable. But a man’s mere belief that another is guilty is not probable cause, unless that belief is founded upon reasonable grounds of suspicion, or upon information of such a reliable kind, and from such reliable sources, as I have mentioned above; and a mere conjecture or suspicion is not probable cause, but the facts must be such as would induce an impartial and reasonable mind to believe in the guilt of the accused. A man has no right to start a criminal prosecution against another upon a mere conjecture that he has committed crime, when neither the conduct of the accused apparent to the accuser, nor the information he has received,, is sufficient to warrant and justify the suspicion before pointed out. There can be no justification in such case, and no. probable cause.” It was said in Hamilton v. Smith, 39 Mich. 227, that— “ It is the province of the jury to ascertain what state of' facts exists, and it is the province of the judge to decide whether that state of facts constitutes probable cause, and the law intends that these functions shall be kept distinct. But as the law appropriate to the. facts cannot be laid down unequivocally until it is ascertained what the facts are, it is found necessary, where they are in dispute, to submit the whole subject to the jury under proper instructions as to the rule of law to be applied, according as they find one state of facts or another. The law belonging to any state of facts subject to be found being given to them in advance, they are enabled, on coming to an agreement as to what is the true state of facts, to apply the law delivered to them as belonging thereto, and formulate the result.” The court, in the charge above quoted, properly defined probable, cause, and when it would be a defense to an action for malicious prosecution. But something more than this was required of the court. It was the duty of the court to apply the law to the facts, and to instruct the jury whether, if they found certain facts claimed by the testimony introduced by the plaintiff to be established, they, taken as a whole, and all legitimate inferences to be drawn therefrom, constituted a want of probable cause; and if they found, from plaintiff’s, testimony, a want of probable cause, then whether, from the testimony of defendant, the want of probable cause was rebutted by showing that defendant had probable cause to believe that the charge made in the complaint was true. "We do not find in the charge that the judge instructed the jury as to the rule Of law to be applied as they should find one state of facts to exist or another. The jury were left to find the fact, and apply the definitions of probable cause and. want of probable cause without any aid from the court, and.. without being told what facts in the case, if found from the testimony, would constitute probable cause, or show a want of probable cause. The eleventh request was in the main correct, and should have been given substantially as requested. The fact that the daughter was also picking berries might and ought to have been omitted, but the balance of the request was proper, and ought to have been given, or substantially covered by the charge. It contained information concerning facts derived from his family and neighbors, which, if actually believed, would have justified a man of rectitude, possessing and acting with ordinary care, prudence, and discretion, in making the complaint. It is claimed that the charge of the court relative to that branch of the defense which was based upon the advice of the prosecuting attorney is erroneous, because there was no such testimony in the case as the charge supposes and assumes. As the bill of exceptions does not profess to contain all the testimony given upon the trial, we cannot determine whether the error is well assigned or not. The presumption in such case is that there was testimony given in the case which justified the court in charging as he did, and that no error in that respect was committed. Upon the question of damages, in case the jury found the plaintiff was entitled to recover, the judge instructed the jury as follows: “ If you find the defendant guilty in this case, the jury have the right to give the plaintiff such an amount of damages as will compensate her for all her expenses and trouble she was put to in defending herself from the charge and examination before the justice, and also for the pain, anguish, and suffering she has endured in consequence of the charge and arrest, and in consequence of a wrongful charge being brought against her, and the public scandal occasioned thereby, and also such sum as will punish the defendant for the wrong he has willfully and maliciously done to the plaintiff.” The subject of damages in cases of this sort was discussed in Hamilton v. Smith, 39 Mich. 230, and the authorities cited showing the principles upon which the Court proceeded in applying the rule of damages in cases of tort. It was observed in that case that, in actions for malicious prosecution,— “The elements of damage were the expense of the plaintiff, if any, in and about the prosecution complained of, to protect himself; his loss of time; his deprivation of liberty, and the loss of the society of his family; the injury to his fame; personal mortification; and the smart and injury of the malicious arts and acts and oppression of the parties.” The subject was again discussed in Stilson v. Gibbs, 53 Mich. 283. In that case the circuit judge instructed the jury that if certain acts were done willfully, maliciously, and wantonly, the jury might find a verdict for exemplary or punitive damages, and, in estimating the amount of their verdict, they would add to the exemplary damages, if they found any, the plaintiff’s actual damages, with interest, concerning which this Court in disposing of the case, said: “The principal fault in the instructions is to be found in the distinct presentation of the idea that the jury, after estimating the actual damages of the defendant, might go further, and give a further sum, limited only by their discretion, by way of punishment and example.” It is not necessary to repeat the discussion. It is summed up by saying that the purpose of an action of tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant; that compensation to the plaintiff is the purpose in view; and, when that is accorded, anything beyond, by whatever name called, is unauthorized. It is not the province of the jury, after full damages have been found for the plaintiff, so that he is fully compensated for the wrong committed by the defendant, to ■mulct the defendant in an additional sum, to be handed oyer to the plaintiff as a punishment for the wrong he has done to ■the plaintiff. The judgment must be reversed, and a new trial granted. The other Justices concurred. See People v. O'Brien, 60 Mich. 8. See Manning v. Bresnahan, 68 Mich. 584 (head-note 4); Gass v. Van Wagner, Id. 610 (head-note 1).

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Sherwood, J. The bill in this case is filed by the com plainant, and prays that a certain execution levy upon his house and lot, situate in Grand Rapids, may be set aside and declared void, for the reason that at the time of the levy the property consisted of one lot worth less than $1,500, and was his homestead. The case was heard in the Kent circuit, before Hon. Robert M. Montgomery, circuit judge, upon pleadings and proofs, and a decree was made granting the relief prayed. After a careful inspection of the record, I have no doubt of the correctness of the conclusion reached by the learned circuit judge. The following facts, I think, are sufficiently established by the pleadings and proofs in the case: The complainant purchased the lot in question, which was then vacant, and which was about 47 feet wide, on Plainfield avenue, of Charles W. Coit, on the twenty-fourth day of October, 1881. He has never owned any other real estate since. The lot contains about an acre, consisting of part of a platted lot, and was located, when bought, in a thickly-settled district, — residence property mostly on either side of it. When the property was sold to the complainant, the vendor understood it was for a homestead, and the complainant purchased it with the intention of making it his homestead, as well as a place upon which he could carry on his business, which was selling meat. He paid $800 for the lot, — paid $200 down, and gave a mortgage upon the property to secure payment of the balance, —and commenced improving the lot November 10 after the purchase. At the time of the purchase he was engaged in carrying on a meat-market on the same street, near the property. His ground-lease having expired, he moved the little shop in which he was doing business onto his own lot, placing it about 50 feet back from the street. His plan, however, was to erect a building on the front of his lot sufficiently large and suitable for carrying on his little meat business, and fur nish him a comfortable residence for bis family; and very soon after taking possession of bis lot, in tbe month of November, be made an unsuccessful effort to raise tbe money to build such a building. He then decided to erect so much of tbe building as would be necessary for bis business purposes, and in such manner that he could thereafter add thereto tbe part he bad intended for the residence of bis family when be could get tbe necessary means. This be did, and in January following built an ice-house on the lot for the use of bis market and family, and in November, 1882, built a barn upon tbe premises for tbe accommodation of tbe horse be used in his business. In this condition the complainant used the property during tbe year 1883, making several efforts, however, during tbe year, with one or more parties, to negotiate a contract for building tbe residence in connection with his market as hereinbefore mentioned. He did not succeed in making tbe arrangement for putting up tbe addition to bis building, which was to constitute tbe apartments and home for bis family, until tbe month of July, 1881, when be made a contract for tbe lumber, and dug a cellar for tbe building. Tbe party who furnished the lumber for tbe completion of tbe building commenced delivering it upon tbe ground on the second day of August, 1881, and tbe building was completed, and tbe complainant moved into it, with bis family, a few months thereafter. After tbe building was completed, tbe assessor valued tbe property at $1,000. From tbe time the complainant took possession of the property until be moved bis1 family into tbe building, be occupied tbe property himself. He used the building first erected for bis meat-market, fenced tbe lot, and raised upon it vegetables for bis family, and some feed for his horse, and, so far as we can discover from tbe record, designed tbe property for his homestead, and so expressed himself in regard to the property whenever be bad any con versation upon the subject of its improvement, or whenever any person, in like circumstances, would be likely to give-expression to his intentions. On the sixth day of August, 1884, defendant held a judgment in his favor against the complainant, and caused the-same, on that day, to be levied upon the property. Some time after the levy was made, complainant notified defendant that the property levied upon was his homestead, and asked him to release and discharge his levy. This defendant refused to do, claiming that the property was not complainant’s homestead, and instructed the sheriff to proceed with his levy, and advertise and sell the property, who proposed to obey the instruction of defendant; and thereupon the complainant filed this bill. The only question in the case needing consideration is, was-the property the complainant’s homestead ? There can be no question, if it was, but that the defendant’s levy clouded the complainant’s title. We think it was shown to be within the constitutional limit as to size and value. It was incumbered by mortgage at the time of the levy to the amount of about $478; and it sufficiently appears that, as fast as' the-complainant was able, he improved the property, with a view of making it his homestead, and had really commenced the-erection of that portion of the building which he designed for, and which, as soon as completed he occupied for, the-residence of himself and family. W'e have no doubt about the good faith in which all the improvements were made, and-under such circumstances it would be, in our judgment,, inequitable and .unjust to attempt to divest the property of its homestead character. We think the case falls clearly within the spirit of the Constitution and statute providing for the exemption of a homestead, and the decisions of this Court made thereunder. A city lot purchased with the intention of making it a homestead for the purchaser and his family will be exempt from levy and sale on execution from the time of purchase, even though unimproved and without a dwelling thereon, if the purchaser encloses it and uses and occupies it with the constant purpose of making it his home, and uses the proceeds thereof, and such means as he can procure, within a reasonable time, to erect a house thereon for his family, provided it does not exceed in quantity and value the constitutional limit. What will be regarded as a reasonable time must necessarily depend upon the circumstances of each particular case. The following authorities will be found to give support to the views herein expressed: Reske v. Reske, 51 Mich. 541; Barber v. Rorabeck, 36 Id. 399; Bouchard v. Bourassa, 57 Mich. 8; Griffin v. Nichols, 51 Id. 575. See, also, Scofield v. Hopkins, 61 Wis. 370 (21 N. W. Rep. 259). We do not think, under the circumstances of this case, that the time taken by the complainant to improve the lot, in such manner as to make a comfortable home for himself and family, was unreasonable; and the decree of the circuit judge must be affirmed. Campbell, O. J., and Champlin, J., concurred. Morse, J., did not sit.

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Champlin, J. The Flint & Fere Marquette Railroad Company filed its petition in the circuit court for the county of Saginaw for the purpose of condemning private property for the public use, under the power of eminent domain granted to railroad companies under the general railroad laws of this State. The petition sets forth that the petitioner had surveyed the route for a proposed spur track, to be owned and operated by it, connected with its main line at apoint near the west bank of the Saginaw river, in Saginaw county, and extending thence southerly, on the westerly side of Saginawriver, across the track and right of way of the “Saginaw Branch of the Detroit & Bay City Railroad,” and terminating in the city of Saginaw. The petition then sets up the fact of the survey and map of the route of the spur track, and the location thereof accordingly, the certificate and indorsement thereof by a majority of the directors, the approval thereof by the commissioner of railroads, and the filing of the map, certificate, and approval in the register’s office of Saginaw county. It then .states that the property therein described— “Is required for the purposes of operating said railroad, and for the purposes of operating said spur-track, and that .said property is required for public use, to wit, for the purpose of operating your petitioner’s spur track railroad across ■said Saginaw Branch of the Detroit & Bay City Railroad;” ■and “ the property to which your petitioner seeks to acquire title under the statute is required for public use.” The petitioner then describes the property, and proceeds .to state that— “The right and title which your petitioner seeks to acquire in and to the premises above described is the right and privilege of using the same for the purpose of constructing and operating its said spur track across the track and right of way of the said Saginaw Branch of the Detroit & Bay City Railroad, at the point above named, as designated on said map; the right of cutting the rail of the said Saginaw Branch of the Detroit & Bay City Railroad Company at such crossing, and inserting therein suitable frogs at the grade of the said Saginaw Branch of the Detroit & Bay City Railroad; and the right of using said premises jointly with the Detroit & Bay City Railroad Company, and its lessee, the Michigan Central Railroad Company, absolutely and fully as a railroad track for the passing and repassing of trains on and over the same, and also the right of maintaining and repairing the said track and crossing.” The petition contains the other allegations required by statute to be embraced in a petition filed for the purpose of acquiring title to real estate for railroad purposes; and it is not necessary to recapitulate them here. The respondents appeared, and moved the court to dismiss the petition, upon the ground “that the court had no jurisdiction to entertain the proceedings, or to appoint the com missioners prayed for,” which, was overruled, and commissioners were appointed. The respondents the Detroit & Bay City Bailroad Company and the Michigan Central Bailroad Company then requested the court, in writing, to instruct the commissioners that, in determining the damages and compensation to be awarded the respondents, they should take into account the following: “ 1. The value of the property taken. “ 2. The injury to the property of which the property taken is a part. ■ “3. That there may be required of the respondents the expense of putting in and maintaining interlocking switch and signal system. “4. That the capacity of the respondents to carry over this part of its road may be diminished. “ 5. That the speed. of the respondents’ trains may be diminished. “ 6. That watchmen and signals may be required to be kept at the crossing by respondents. “7. That respondents’ trains will be required to stop before coming to the crossing. “ 8. That, by reason of the crossing, time may be lost in the running of its trains. “9. That damage may be done to respondents’ bridge across Saginaw river by operating its road as required by the placing of this crossing at the proposed point.” The court refused to instruct the commissioners as requested, and gave them no instructions whatever. The commissioners were sworn, and-proceeded with the inquisition. The respective parties appeared before them by counsel, and introduced testimony. The commissioners also viewed the premises, and made their report to the court in writing, in which they stated that,— “ After hearing the proofs and allegations of the parties, and after all the testimony was closed, we, all being present and acting together, ascertained and determined that it is necessary to take and use the real estate and property described in the petition [describing it] for the purposes of the Flint & Pere Marquette Railroad Company, as mentioned and set forth in its petition, and that such taking and using of such property is a necessary public use of the same, and is a necessary public benefit. “Also, we, all being present and acting together, at the same time ascertained, determined, and appraised the damages and compensation which ought justly to be made by said Flint & Pere Marquette Railroad Company to the party or parties owning and interested in said real estate and property proposed to be taken for the purposes in said petition described, as well for the value of the same as for the damages resulting from such taking, at the sum of one hundred dollars.” This report was filed on the seventh day of August, 1886, and on the tenth, the question of the confirmation of the report being before the court, the parties being present by their counsel, it was agreed between them that whatever sum is or should be awarded should be awarded to the respondents jointly; and thereupon, on motion of counsel for petitioner, after hearing counsel for respondents in opposition thereto, it was ordered that the report be confirmed. Afterwards, and on the sixteenth of August, a more formal order was entered. Counsel for respondents filed in said proceedings their exceptions thereto, as follows: “In thb Circuit Court roe the County or Saginaw. “ In the Matter of the Petition of the Flint é Pere Marquette Railroad Company v. The Detroit & Bay City Railroad Company, The Michigan Central Railroad Company, and the Union Trust Company of New York. “ In this proceeding, the said respondents, the Detroit & Bay City Railroad Company, the Michigan Central Railroad Company, and the Union Trust Company of New York, and each of said respondents, except to the proceedings taken, on the following grounds: “ 1. That the said court refused to grant the respondents’ motion to dismiss the petition filed in the -cause upon the ground that the court has no jurisdiction to entertain the proceedings, or to appoint the commissioners prayed for. “2- That the court had no jurisdiction to appoint the said commissioners who were appointed in said cause. “ 3. That the court refused to instruct the said commissioners as requested in writing by the respondents the Detroit & Bay City Eailroad Company and the Michigan Central Bailroad Company, which requests are filed in said proceedings, and are hereby referred to, and that the court refused to give each of said several requests; and this exception is to the refusal to give separately each of said requests. “ 4. That the respondents requested the said commissioners to take into account, in determining the damages and the compensaron to be awarded, each of the said several grounds of damages specified in tbe said requests to said court for instructions to said commissioners, filed in writing as aforesaid, and in their report to state upon which of said several grounds they allowed damages and compensation; and that the said commissioners neglected and failed to comply with the said respondents’ said request to them, and did not take into account said several grounds for damages and compensation, and did not state in their report upon or for which of said several grounds they allowed damages and compensation. “5. That the said commissioners did not state, in their .said report, what were the grounds upon which they allowed damages and compensation, so that these respondents are not able to determine what were the grounds for or upon which damages and compensation were allowed. “ 6. That the said commissioners allowed for damages and ■compensation only for the value of the property taken. “ 7. That the said commissioners did not take into account each of the said several grounds for damages and compensation stated in said requests. “8. That the damages and compensation allowed and reported by said commissioners were and are insufficient, and in amount are inequitable and unjust towards these respondents. “ 9. That the statute under which the commissioners acted in determining the amount of damages and compensation to be allowed is unconstitutional, and is also in terms such as to render it impracticable for the commissioners acting under it to determine what are proper damages and compensation to be allowed. “ 10. That the said court had no jurisdiction to confirm the report of the said commissioners. “11. That the said court confirmed the report of the said commissioners, and the said respondents appeal from the said proceedings to the Supreme Court of the State of Michigan.” The objections specified in such appeal are as follows: “ 1. That the said court refused to grant the respondents’' motion to dismiss the petition filed in the cause, upon the ground that the court has no jurisdiction to entertain the proceedings, or to appoint the commissioners prayed for. “2. That the court has no jurisdiction to appoint the said commissioners who were appointed in said cause. “ 3. That the court refused to instruct the said commissioners as requested in writing by the respondents the Detroit & Bay City Railroad Company and the Michigan Central Railroad Company, which requests are filed in said proceedings, and are hereby referred to, * * * and that the court refused to give each of said several requests; and this exception is to the refusal to give separately each of said requests. “4. That the respondents requested the said commissioners-to take into account, in determining the damages and compensation to be awarded, each of the said several grounds of damages specified in the said requests to said court for instructions to said commissioners filed in writing, as aforesaid, and in their report to state upon which of said several grounds they allowed damages and compensation, and that the said commissioners neglected and failed to comply with the said respondents’ said requests to them, and did not take into account said several grounds for damages and compensation, and did not state in their report upon or for which of said several grounds they allowed damages and compensation. “5. That the said commissioners did not state in their said report what were the grounds upon which they allowed damages and compensation, so that these respondents are not able to determine what were the grounds for or upon which damages and compensation were allowed. “ 6. That the said commissioners allowed for damages and compensation only for the value of the property taken., “ 7. That the said commissioners did not take into account each of the said several grounds for damages and compensation stated in said requests. “ 8. That the damages and compensation allowed and re ported by said commissioners were and are insufficient, and in amount are inequitable and unjust towards these respondents. “ 9. That the statute under which the commissioners acted in determining the amount of damages and compensation to be allowed is unconstitutional, and is also in terms such as to render it impracticable for the commissioners acting under it to determine what are proper damages and compensation to be allowed. “10. The said court has no jurisdiction to confirm the-report, of the said commissioners. “ 11. That the said court confirmed the report of said commissioners. ” How. Stat. § 3337, authorizing appeals to be taken to the Supreme Court from the appraisal or report of the commissioners, requires notice of such appeal to be given to the opposite party, and enacts that— “ Such notice shall specify the objections to the proceedings had in the premises, and the Supreme Court shall pass on such objections only; and all other objections, if any, shall be deemed to have been waived. Such appeal shall be heard by the Supreme Court at any. general or special term thereof, on notice thereof being given according to the rules and practice of the Court. On the hearing of such appeal, the Court may direct a new appraisal before the same or new commissioners or jury, in its discretion.” Under this statute, it was held, in the case of Michigan Air Line Ry. v. Barnes, 44 Mich. 225, that— “ The obvious meaning of the statute is that the error and defects complained of shall be pointed out with such particularity that the attention of the appellee and of the Court will be at once precisely directed to them.” The first, second, tenth, and eleventh objections contained in the notice of appeal are open to this criticism. The particular want of jurisdiction is not specified. When a statute confers upon a court of record jurisdiction over certain proceedings, a general objection that the court has no jurisdiction amounts to nothing. If certain steps have been omitted which it is deemed by counsel necessary to have been taken in order to confer jurisdiction, the particular omission should be pointed out in the objection. This was not done in this case, and the statute is explicit that, unless the objections to the proceedings are specified, they shall be deemed to have been waived. Attention is called in the briefs of counsel to what are claimed to be defects in the petition, in this: 1. That it prays simply for a crossing at grade. 2. That it does not aver that the taking of the property described in it is necessary for public use. Were there any objections specified under which these points could be considered, I should still be of opinion that neither of them are well taken. The petition sets up with sufficient certainty the rights which the petitioner seeks to acquire, and alleges that the property which is thus sought is required for the public use. It is- true, the statute provides that the petition shall state that the taking of the property is necessary for public use. But the word “ required,” in the sense in which it is used in the petition in this case, is synonymous with the word “necessary.” It conveys the same meaning. At the time these proceedings were being had, the case of Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. R. Co., 62 Mich. 564, was under advisement, but the decision had not been handed down. It was claimed upon the argument that, in view of what was said in that case, the petition in this case is fatally defective in not stating in a threefold manner that the petitioner desired to cross either at grade, above, or below the respondents’ track, and that the jury should award damages and compensation based upon each method of crossing as should thereafter be determined by the crossing board provided for in Act 174 of the Session Laws of 1883. I do not understand that to be the scope of the decision in that case. I regard what was said in that case about a proper petition as merely suggestive, and as indicating that it would be proper for the commissioners or jury to receive evidence bearing upon each mode of crossing. The statute requires that the right to cross or connect shall be acquired by purchase or condemnation, in the same manner as prescribed by the act for obtaining title to real estate ■or other property, and the act prescribes what the petition shall contain. If the petition contains what is required by the act, it is difficult for me to see how it can be fatally defective for not containing statements not so required; and there is no requirement that the petition shall state that the petitioner desires to acquire the land in question for the purpose of a crossing in either one of the three ways which the crossing board shall thereafter determine shall be done. The law presumes that the petitioner knows whether the railroad company desires to cross at grade or otherwise, and that it will petition to acquire the right to cross in the manner it deems most suitable for its own interests. If the petition defines the manner, the damages would naturally be awarded on that basis. The company, however, will still have no right to cross, or in any manner interfere with, the respondents’ property, in case of disagreement as to manner of crossing, until the crossing board has determined the manner of crossing, — whether at grade or otherwise; and, if it should turn out that the crossing board should determine that the crossing should not be made in the manner described in the petition upon which the right was acquired, it would necessitate a new petition to condemn .the right to cross in the manner designated by the board, and an award of damages based upon that petition. But this result, in practice, will not be liable to happen, because the manner of crossing is dependent upon certain physical conditions of the locality, and the self-interest of .the crossing road will always prompt a crossing either over or under, where it can be done without injustice to either company. It, moreover, is common knowledge that a crossing either over or under another road would cause much less damage to the road crossed than a crossing at grade, and consequently damages which are assessed or awarded upon the basis of a crossing at grade must necessarily be greater than either of the other two methods; and, if properly allowed, it is not perceived how it can be a ground of serious complaint that another manner of crossing, causing less damages, may be adopted by the crossing board. My own opinion is that the statutes ought to be so amended, with reference to crossings and connections of one railroad with another, as to require the company desiring to cross to apply, in the first instance, to the crossing board by-petition, and notice to the other railroad company, designating the point at which it is designed to cross, to determine the manner of crossing in case the right to cross is acquired by the proper condemnation proceedings. The jury or commissioners would then be apprised of the manner in which the right would be exercised, and the proof of damages and compensation be directed to the exact point. As the statute stands now, it seems rather incongruous. In the case last referred to the points above discussed were not the ones upon which the decision was based. The objections to the petition, which we held to have been well taken, were that it showed no effort to obtain the property by agreement with the respondents in that case before taking proceedings for condemnation; that it sought by petition to obtain greater rights in the respondents’ property and franchises than the law allows in the condemnation proceedings; and that it did not properly describe the property which it sought to condemn. The petition in this case is open to none of these objections; and, as neither these nor others are pointed out in the objections upon which the appeal is based, the petition need not be further noticed. I do not consider that any error was committed by the court in refusing to instruct the commissioners at the request of the respondents. The court might have done so had it thought proper. But it was not a duty imposed by law, and its instructions would not have been binding upon the commissioners had it done so. This has been settled by our previous adjudications, which were based upon satisfactory reasoning, and I see no good object to be accomplished in overruling them. Toledo, A. A. & G. T. Ry. Co. v. Dunlap, 47 Mich. 466; Port Huron & S. W. Ry. Co. v. Voorheis, 50 Id. 510; Michigan Air Line Ry. v. Barnes, 44 Id. 226. The ninth objection, relating to the uneonstitutionality of the statute authorizing private property to be condemned for the purpose of constructing spur tracks, was not insisted upon or argued upon the hearing, and I therefore do not pass upon it. The fourth and fifth objections are based upon the failure of the commissioners to specify, in their report, the several grounds upon which they allowed damages and compensation. The statute requires the commissioners to— “ Ascertain and determine the necessity of taking and using any such real estate or property for the purposes described ; and, if they deem the "same necessary to be taken, they shall ascertain and determine the damages or compensation which ought justly to be made by the company therefor to the party or parties owning or interested in the real estate or property appraised by them.” The commissioners in this case, after determining upon the necessity of the taking for the public use, reported that they had— “ Ascertained, determined, and appraised the damages and compensation which ought justly to be made by said Flint & Pere Marquette Railroad Company to the party or parties owning and interested in said real estate and property .proposed to be taken for the purposes in said petition described, as well for the value of the same as for the damages resulting from such taking, at the sum of one hundred dollars.” It appears that the commissioners have complied with the statute in the respect complained of. The statute nowhere requires that the commissioners shall specify each particular item of damage or compensation allowed. On the contrary, it contemplates that a general finding will be made. In the case of Michigan Air Line Ry. v. Barnes, 44 Mich. 222, the same objection was made, and decided by this Court. In that case the jury reported in general terms, and it was held sufficient, and that it was not necessary to specify what damage was allowed on each separate cause. And in Port Huron & S. W. Ry. Co. v. Voorheis, 50 Mich. 511, it was said that— “We regret the finding of the commissioners does not give us more information upon the subject; but there is nothing in the statute or practice yet established requiring them to be more specific in their report of items for which they allow damages or compensation, and there is no authority given to compel such report if they fail to do so.” In view of the statute and our decisions above cited, I think the fourth and fifth objections must be overruled. The sixth, seventh, and eighth objections may be considered together, and are all embraced in the eighth. The testimony taken upon the inquest has, by consent of the parties, all been returned, and is embodied in the printed record before us. It appears from this that the respondents placed before the commissioners all the testimony they desired upon each element of damages claimed by them which would result to them by reason of the taking petitioned for; and the commissioners, after consideration of all the testimony, have reported that they have appraised the damage and compensation as well for the value of the property taken as for the damages resulting from such talcing ; and unless the damages awarded appear to be grossly inadequate, or so much so as to give rise to the inference that the commissioners must have acted upon a wrong basis of estimating the damages, the award should not be disturbed. The compensation must depend upon what property, rights, or franchises are taken by the petitioning railroad company, and the damages consequent thereon to the railroad company crossed. In ordinary cases, the taking by a railroad company vests in it the exclusive use of the right of way for railroad purposes; and the statute provides that'— “ All persons who have been made parties to the proceedings, either by publication or otherwise, shall be divested and barred of all right, estate, and interest in such real estate, franchise, or other property until such right or title shall be again legally vested in such owner.” The effect of this statute is to deprive the owner of the use of the land taken; but, when one railroad company acquires the right to cross the track and right of way of another, the case is different. Here the exclusive use is not taken. The damages do not arise from the deprivation of the use, but from interference with the exclusive use for railroad purposes ; and hence the award is governed by different considerations than those applied when a railroad company seeks to condemn the right of way over lands of private persons. In one case the value of the land taken would be included in the damages and compensation; in the other there is no reason why it should be, because the owner, the railroad company, is not deprived of its use, nor is it divested or barred of all right, estate, and interest therein. The right acquired by the condemnation proceedings is the right to cross. The right condemned is the right to an exclusive use, which by virtue of the condemnation proceedings becomes converted into a common use as a right of way for both companies. The taking is not absolute, but qualified. If the value of the land is included, and compensation made therefor, as in other cases, it will divest the railroad company of its interest and estate in the right of way included in the crossing, and it would follow that, if the company whose land was crossed desired to lay additional tracks along its original right of way,'it would be obliged to acquire the right to do so by condemnation proceedings against the crossing road, and pay again for the value of the land, and all expenses and consequential damages. It is not the contemplation of the law that a railroad company’s right of way shall be severed by every railroad that crosses it, and its estate divested and transferred to the railroad company which crosses its right of way. Lehigh Valley R. R. Co. v. Dover & Rockaway R. R. Co., 43 N. J. Law, 528. The statutes upon the subject .must be construed together. The company organizing under the general railroad law does so in view of the statute which .authorizes other roads to cross its right of way, by making just compensation. In the case of Grand Rapids, N. & L. S. R. R. Co. v. Grand Rapids & I. R. R. Co., 35 Mich. 273, it was said that the “franchises or property of one railroad company may be taken' for the construction of another in all cases where the property of an individual might be, upon making compensation therefor.” In Grand Rapids v. Grand Rapids & I. R. R. Co., 58 Mich. 648, it was held that the damage done to a railroad by having a highway run across it must necessarily include all additional expense entailed by such a crossing in making it safe and providing guards against accidents; that, under the Constitution, there must be just compensation, and this cannot be denied by law or by verdict. See, also, People v. Lake Shore & M. S. Ry. Co., 52 Mich. 277. What elements of damages should be considered and included in the sum to be awarded as just compensation are not easily determined with certainty. The general rule of dam ages is applicable to investigations of this kind, — that they cannot be allowed 'on mere conjecture, speculation, fancy, or imagination; they must be real, tangible, and proximate. The respondents claim that they were entitled to damages— 1. For the cost of maintaining signals or crossing system. 2. For cost of watchihan. 3. Cost of stopping trains. 4. Damages that might be done to respondents’ bridge across Saginaw river in stopping and starting trains thereon within 800 feet of the crossing. 5. Damages occasioned by loss of time in running trains. 6. Damages caused by reason of the diminished capacity of the road. 7. That respondents might be required to put in an interlocking switch and signal system, and maintain the same. It is not claimed that the evidence introduced was of that nature which would authorize , the commissioners to award damages upon any of the claims made except the first three, and upon these it is claimed that the evidence showed that the result of establishing a crossing at the point named in the petition would impose upon the respondents an increased expense each year as follows: Cost of maintaining signals or crossing system, $ 50 Cost of watchman,*.....425 Cost of. stopping trains, - 300 Being a total of • - - - - $775 The commissioners having allowed only $100 for the land taken and the consequential damages, the respondents claim such allowance is grossly inadequate in view of the above items which the evidence tended to establish. The question as to what elements of damages should enter into and form a basis of an award when one railroad crosses another has been before the courts of some of our sister states; and, while the decisions have not been entirely uniform, the principles underlying them all point to an allowance which shall secure a just compensation within the recog nized rules of evidence relating to damages, as including all loss or injury which, is the direct result o'f the appropriation of the land to the new use. They also recognized that there are elements of damage which, aside from being uncertain, remote, or conjectural, are the consequence of regulations by the legislature designed to secure the safety of the public, which are imposed upon all railroad companies alike, and which, in so far as they do not involve any structural change in the property itself in order to make it conform to the new condition, do not afford a basis for compensation. The result of the decision in Massachusetts was announced by Mr. Chief Justice Gray in Mass. Cent. R. R. Co. v. Boston, C. & F. R. R. Co., 121 Mass. 124, tersely as follows: “A railroad corporation across whose road another railroad or a highway is laid out has the like right as all individuals or bodies politic and corporate, owning land or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Com. v. Boston & M. R. R., 3 Cush. 25, 53; Old Colony R. R. Co. v Plymouth, 14 Gray, 155; Grand Junction R. R. Co. v. County Com’rs of Middlesex, Id. 553. But it is not entitled to damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Lodes and Canals v. Nashua de L. R. R. Co., 10 Cush. 385, 392; Boston & W. R. R. Co. v. Old Colony R. R. Co., 12 Cush. 605, 611; S. C. 3 Allen, 142, 146; Old Colony R. R. Co. v. Plymouth, 14 Gray, 155.” In Illinois the principle was laid down in the case of Chicago & W. L. R. R. Co. v. Englewood Connecting Ry. Co., 115 Ill. 375 (S. C. 23 Amer. & Eng. R. R. Cas. 56), founded upon the manifest fact that the value of a railroad property* outside of the advantages of location and amount of business it controls* consists in the strength, permanency, and durability of its structures, and its adaptability to and capacity for doing railroad business;— “That, whenever the proposed condemnation and subsequent user will injuriously affect such a property in either of these respects, the injury thus occasioned will form a proper basis for the /assessment of damages in a proceeding of this kind.” In this case the court on the trial excluded all evidence from the jury tending to show that either the value of the respondent’s road, or its capacity to do the business of the company, would be impaired by the proposed crossing; and the court, upon á review of the authorities in that state* held that the court below erred. It had previously been held by that court that the law requiring trains to stop before reaching and crossing another road was a police regulation* and might be maintained or repealed at the pleasure of the legislature; that it would therefore be mere conjecture as to what, if any, damages would be sustained for the delay, inconvenience* and trouble produced by complying with the requirements of the statute; and that, independent of the statute, the same duty would be imposed* and that it was too vague and uncertain to be an element of damages. Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 105 Ill. 110. The point was more fully considered in an opinion filed at the same time with that above cited, and reported in the same volume, at page 388, in which a rehearing was denied at the March term* 1883, in which the majority of the court held that damages occasioned by the stopping of trains could not be considered in awarding compensation (Chicago & A. R. R. Co. v. Joliet, L. & A. Ry. Co.). These decisions have not been overruled in that state. Such is also the conclusion reached by the supreme court of Ohio. Lake Shore & M. S. Ry Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604. I think tbat the stopping of trains, whether required by the law as a police regulation, or by the duty of the company in order to secure the safety of persons transported, is not an element which can be considered by the jury in estimating the damages and compensation to be made. The general railroad law requires trains to come to a full ■stop, before crossing the track of another railroad, not nearer than 200 nor more than 800 feet from the crossing. It regulates the precedence which trains shall have in crossing, and prescribes penalties for disobedience of the regulations. These are police regulations enacted by the Legislature, -designed to promote the public safety, and are as binding upon an existing road as one newly organized. They stand •upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedience to it3 requirements. It is subject to amendment or repeal at any time the Legislature may see ñt; and for this reason, as well as for the absolute impossibility of determining in advance the number of trains which in the future operation of the road would be required to stop at such crossing, the damage arising therefrom is uncertain and conjectural. But, aside from this, any inconvenience or annoyance or loss suffered in obeying the police regulations of the sovereign authority is damnum absque injuria. I do not agree with Mr. Justice Scott, in Chicago & A. R. R. Co. v. Joliet, L. & A. Ry. Co. supra, that, so far as the defendant would suffer injury on account of having to stop trains at the crossing for reasons other than the compliance with the statute, damages might be given. No stoppage would be required, independently of the statute, other than that which would arise from the duty of the company to operate its road in such manner as to avoid danger from .collision at the crossing. In the absence of the statute, the duty imposed by the eir cumstances upon the corporation to adopt and observe proper precautions to protect the lives of persons committing themselves to its care takes the force of law, and has its foundation in the same principles which underlie police regulations, namely, the protection and welfare of the public. In other words, the police regulation requiring trains to stop does not create a new duty, but compels the observance of an existing duty by the corporation. The statute or duty merely regulates the mode in which the corporation shall exercise its ■franchise. This incident to crossing takes no land, requires no structural change in the property, and deprives the corporation of no right granted by its charter. It does not lie within the scope of injuries for which compensation should be made. The cost of maintaining signals or a crossing system would be a proper matter for the consideration of the commissioners, as well as cost of watchman. These expenses, however, are subject to contingencies which may cause the damages to fluctuate, and possibly be reduced to a nominal sum. The evidence bearing on all these contingencies was introduced before the commissioners. It was shown that if the interlocking switch and signal system was put in, which, under our decision in the case of Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. R. Co., 62 Mich. 564, must be done entirely at the expense of the petitioning company, it would reduce the expense of maintaining to nearly a nominal sum, to be borne equally between the two roads; and, although it does not appear in the record before us that this was the system adopted by the petitioner, yet it was brought to our attention, upon the argument, that the crossing board had determined that the interlocking switch must be put in; and a stipulation,was made in this Court, based upon the construction of such switch, not to disturb petitioner in its possession as a condition for hearing the cause in this Court. In view of these facts, I cannot say that the damages-awarded are so grossly inadequate as to warrant us in sending the inquisition back to the same or a new commission. I think the objections not waived should be overruled, and the report of the commissioners, and the confirmation thereof, should be affirmed. Sherwood and Morse, JJ., concurred. Campbell, C. J. I have great doubts whether the judgment for damages is not very, much too low; but I concur in the opinion that, upon the imperfect means of estimation, there is difficulty in disturbing it. See Toledo, A. A. & N. M. Ry. Co. v. D., L. & N. R. R. Co., 63 Mich. 645. How. Stat. § 3335. How. Stat. § 3337. See Toledo, A. A. & N. M. My. Co. v. D., L. & N. R. R. Co., 62 Mich. 564. How. Stat. § 3376; amended by Act No. 174, Laws of 1883.

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Morse, J. This is an action of trover brought by the ■plaintiff to recover certain property described in and covered by two chattel mortgages, executed and delivered to him by Thaddeus Ganong, his father. On the twenty-first and twenty-fourth days of November, 1884, the defendant Holland, who is a constable, levied upon the property, the execution being in favor of the defendant ■Green, and took the same to the house of Green, where he kept it until the second day of December, 1884, when he sold ifc at public auction. When taken upon the execution, the-property was in the possession of the mortgagor, ThaddeusGanong, but plaintiff claimed that he was entitled to the immediate possession of the goods by agreement with his father, and had the right to hold the same until the mortgages were due or paid. We think the evidence of such an arrangement was admissible. Before the sale, the plaintiff, by his attorney, demanded of the defendants, who were apparently acting together in the possession of the property, each separate article. Upon such demand being refused, he forbade the sale, stating that the plaintiff held two mortgages upon the goods, and that the-property could not be lawfully sold in parcels. The constable and the defendant Green, plaintiff in execution, went on with the sale. The articles were sold separately, and bid off by various persons, Green being a purchaser of. some of the goods. The property was sold by the constable on Green’s premises, by the direction of Green. After the completion of the sale, and before the property was taken away by the purchasers, the attorney of plaintiff again demanded all of the-property of both Green and the constable. The de,mand was again refused. No claim or intimation was made by plaintiff’s attorney that the sale was invalid for any other reason than that it was sold in parcels, in violation of the rights of' the mortgagee. The constable sold the property, disregarding plaintiff’s claim, on the ground that the mortgages were fraudulent and void as against creditors. On the trial in the circuit court the defendants showed a-valid judgment, execution, and levy. The execution was issued November 21, 1884, and was returnable within 60 days-from its date. The levy was made upon a portion of the property on the same day, and on the balance November 24,. 1884. Before notice of sale, $250 of the property was set off to Thaddeus Ganong, who received the same, as exempt property, with the knowledge of plaintiff. The notice of sale was regular, and conformed to the statute, excepting that it-did not state the names of the parties in the suit upon which the execution issued. For this reason the circuit judge held that the notice was defective and void, and instructed the jury to ñnd a verdict for the plaintiff. This ruling and instruction is assigned as error. The defendants claimed, and introduced testimony tending to show, that the mortgages were. void. But the court-,, under his view of the case, held that the defendants had no standing to contest the plaintiff’s title because of the void sale. Under the statute regulating constables’ sales, previous to 1879, there was no provision as to the form of the notice in respect to the names of the parties. It was held in Perkins v. Spaulding, 2 Mich. 160, that while it would be proper and desirable to specify in such notice the name of the execution defendant, the omission to do so would not invalidate the sale. See, also, Manwaring v. Jenison, 61 Mich. 143. In 1879 the Legislature amended the statute so' that it now reads: “Such notice shall describe the goods and chattels, and shall contain the names of the parties to the suit upon which the execution issued, and shall be put up at least five days-before the time appointed for the sale.” How. Stat. § 6980. The plaintiff claims that this statute is mandatory; that-the intent of the Legislature, by this amendment, was to meet the ruling in Perkins v. Spaulding. But statutes of this nature have seldom been held by the courts to be mandatory. It has been said that it is the policy of the law to-uphold judicial sales, when collaterally attacked, by securing, purchasers, as far as possible without-prejudice, to others, against risks; and if every neglect of duty upon the part of an officer would operate to invalidate such sale, great injury would result to both debtor and creditor, for no prudent man would give a fair price for property if lie was liable to be divested of his title by reason of the laches of the officer. Smith v. Randall, 6 Cal. 47; Blood v. Light, 38 Id. 649; Webber v. Cox, 6 T. B. Mon. 110; Hayden v. Dunlap, 3 Bibb, 216; Freem. Ex. § 286. And in the case of constables’ sales, where the law does not provide for the filing or preservation in any public office of the notice of sale, to require such notice to comply with the ■statute to make a sale valid, would, as against bona fide purchasers at such sale, result in great hardship and injustice. It would be impossible, in most cases, a few months after such sale, to show that the statute was followed, and lead to uncertainty and doubt as to the title to property so purchased, which could be settled only by oral testimony, as conflicting, ■in the majority of instances, as the interests of the parties ■concerned. But if the intent of the Legislature is plain, such intent must govern. I do not, however, consider it necessary in the present case to decide what the intent of the Legislature was in amending this statute. There is no provision declaring a sale not made in pursuance of the statute null and void; and, therefore, the intent is not free from doubt. We have no good-faith purchasers to deal with in this action, as the ■■suit is brought directly against the constable and the execution creditor, for converting the property, by the sale of it, under this notice. I do not think the plaintiff had a right, under the circumstances shown by this record, to contest the validity of this notice. At the time when the plaintiff’s attorney first demanded this property, the constable was holding it, and was ■entitled to the possessiqn, under a lawful levy upon a valid judgment and execution. The attorney in behalf of the plaintiff rested upon his rights under the mortgages, and forbade the sale in parcels. Neither before or after the sale did he raise any question of the validity of the sale because of the defect in the notice. If he had done so, and the attention of the defendants had been challenged to this defect, it is reasonable to infer that the sale would have been declared off, and a new sale ordered', under a proper notice, which could have been done within the life of the execution The plaintiff saw fit to base his objections to the sale upon his mortgage rights, and there he must stand. By his action the defendants were led to believe that he was going to contest the sale of the property because it was sold in opposition to, and in derogation of, his mortgages, and acted accordingly. He cannot, in justice, be allowed, after the property has passed out of their hands to ‘ the purchasers, to take advantage of this defect in the notice, to their disadvantage. He is estopped from now questioning such sale, except upon the ground assigned at the sale, as he' must be presumed to have waived all other defects by his action at that time. Freem. Ex. § 286; Rorer, Jud. Sales, § 472. The defendants had a right to go to the jury upon the question of the validity of plaintiff’s mortgage lien. If his mortgages, or one of them, were valid, the sale of the property in parcels was void, and he can recover. If his mortgages were fraudulent, or had been paid, the sale cannot be questioned by him in this suit. The judgment of the court below is reversed, with costs, and a new trial granted. The other Justices concurred. The mortgages were also signed by the mortgagor’s wife. See Winslow v. Jenness, 64 Mich. 88, and note.

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Ohamplin, J. Piaintiff brought suit against the city of Detroit to recover damages occasioned by a defective sidewalk on Warren avenue west. The right of recovery is based upon sections 1442 to 1446 of Howell’s Statutes, as amended by Act No. 214 of the Session Laws of 1885, enjoining upon municipal corporations the duty of keeping the sidewalks therein in reasonable repair, and reasonably safe and convenient for public travel. No question is made upon the sufficiency of the declaration in alleging a cause of action in case the statute is legal and valid. The defendant interposed a general demurrer, which was sustained by the court below, and judgment rendered for defendant. The plaintiff sued out a writ of error. The defendant claims that the amendments passed by the Legislature at its session in 1885 are unconstitutional and void, as being an infraction of section 20 of article 4 of the Constitution, which provides: “No law shall embrace more than one object, which shall be expressed in its title.” The title of Act No. 214 is as follows: “An act to amend sections 1442, 1443, 1445, and 1446 of Howell’s Annotated Statutes, being sections 1, 2, 4, and 5 of Act No. 244 of the Session Laws of 1879, entitled: ‘An act for the collection of damages sustained by reason of defective public highways, streets, bridges, cross-walks, and culverts,’ so as to make said act cover damages sustained by reason of defective sidewalks.” The only section of Act No. 244 which is not amended by Act No. 214 is section 3, which is not important to be noticed in this discussion. The amending act comprises seven sections, two of which, sections 6 and 7, are entirely new. The objection to the amending act is that sections 6 and 7 are not •covered by the title, and that they are so necessarily connected with what precedes, and so essentially a part of its ■scope and purpose, that if they fall the whole amended act must fall with them, which would leave the law to stand as it was before the attempted amendment. The first three sections are re-enactments of the old law, with the addition of the word “sidewalks,” thus making it the duty of municipal corporations to keep its sidewalks in reasonable repair, and reasonably safe and fit for. public travel, and creating a liability in favor of a person injured by such neglect of duty. Section 6 provides that “ no township, village, or city in this State shall be liable/5 etc., except “under and according to the provisions of this act,” and abrogates the “ common-law liability.” Section 7 limits the amount recoverable to $300 against a municipality of a population of 500 or less; $600 where the population is over 500 and less than 1,000; $1,000 where the population is over 1,000 and less than 2,000; and $1,800 where the population is over 2,000. The population is to be ascertained from the census taken next preceding the commencement of suit. This section also contains a proviso that the owner of the lot abutting the sidewalk on which the injury occurred for which judgment was recovered, and whose duty it is to build and maintain such sidewalk, shall not be liable to the city, village, or township, for or on account of such judgment. There is nothing said in the title of the act about adding any new sections, and nothing expressed therein relative to abrogating the common-law liability of townships, villages, and cities for or on account of bodily injuries sustained by any person, by reason of neglect to keep in repair highways, cross-walks, etc. So far as section 6 is concerned, it abrogated what this Court had previously held did not exist in this State. But the federal courts took a different view, and held that such, liability does exist at common law, and suitors in those courts were allowed to maintain actions therefor. Thus the administration of the law was not uniform. Redress could not be had if the injured party was a citizen of the State; but if he happened to be a citizen of another state, or an alien, he could obtain redress in a federal court. The object of this section undoubtedly was to abolish the liability at common law of a municipality arising from neglect of duty to keep its. streets and highways in repair, and to provide a statutory remedy in the act by which all injured persons should be placed upon the same footing. But this object is not embraced in the title to -the act. It is different and independent of the object stated in the title. The one grants a remedy; the other takes away, if valid, a remedy which existed in favor of certain classes of persons. The seventh section is not embraced in the title of the amended act. That merely amended certain sections of the original act so as to include therein damages sustained by reason of defective sidewalks. This section limits the amount of damages to be recovered, and graduates the recovery, not in proportion to the injury suffered, but to the population which the municipality had at the last preceding census. This section applies, not only to the added subject for which recovery may be had, but to damages allowed to be recovered under the original act. This cannot be done without some indication of such object being expressed in the title. The two sections which were added, being for a different object than that expressed in the title of the act, are void, as conflicting with that clause of the Constitution above cited. It appears to us quite clear that the amendments made to the original sections so as to include sidewalks were intimately connected with the two sections added, and especially with section 7, and are so dependent upon each other in the scheme to be accomplished, — that is, to create a limited liability against townships, etc., for injuries arising from defective sidewalks, — as to warrant a belief that the Legislature intended them as a whole, and would not have created the liability without the limitation expressed in section 7; and we think, for this reason, the whole amendments to the act must fall. Attorney General v. Common Council of Detroit, 29 Mich. 108; Warren v. Charlestown, 2 Gray, 99; State v. Commissioners of Perry Co., 5 Ohio Sb. 507; Slauson v. Racine, 13 Wis. 398; Risser v. Hoyt, 53 Mich. 185, 194; Cooley, Const. Lim. 179. The judgment must be affirmed. The other Justices concurred.

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Morse, J. The complainant filed his bill in the circuit court for the county of Marquette, in chancery, to foreclose or enforce a lien upon certain land of the defendant by virtue of a deed from the Auditor General for the taxes of 1881, the land being sold for taxes, and the conveyance executed, under the provisions of the tax law of 1882. The bill alleges that on the fifth day of May, 1884, he purchased from the State of Michigan a certain description of land; that the deed was executed by the Auditor General to him by virtue of a sale, under the direction of said officer, and under section 63 of Act No. 9 of the Laws of 1882, for the unpaid taxes duly assessed upon said land for the year 1881; that the consideration of the deed paid bv him was $14.70, the amount of the tax so assessed and levied. Before 1881, the defendant, Busch, or the parties from whom he obtained his title, purchased said land from the United States, and obtained a patent therefor. Said defendant was the owner of the premises at the time the tax was levied, and when the sale took place at which complainant purchased. Complainant’s deed, thus obtained, is void and ineffectual to convey title, because a sale under said section 63 of said Act No. 9 of the Laws of 1882 for the taxes for the year 1881 has been so declared in this Court in the case of Thomas v. Collins, 58 Mich. 64. But the taxes were legally assessed and levied, and, though the deed is void as a conveyance, yet by virtue of section 1167 of Howell’s Statutes said tax remains a lawful lien upon the land, and the complainant, having paid the State the amount of the tax, and received the deed, has become the assignee of said lien, and entitled to enforce the same as against the said land, together with the lawful charges in the assessing and collecting of said tax, and with interest at the rate of 25 per cent, from the date of such sale. Complainant further alleges that, by virtue of Act No. 153 of the Laws of 1885, said lien of the State upon said land was transferred to him, and by virtue of said act he is ■entitled to a lien upon the said land for the amount of said tax, and- interest upon the same, so paid to the State. Complainant further states that said sale of the land, so made to him, was by virtue of a decree of the circuit court in chancery, in pursuance of the provisions of the tax law of 1882; and he waives any claim of title in fee to such land Tinder his said deed of May 5,1884, except as he may acquire by purchase under any sale made of such land under the decree of the court in this action, or in an action to enforce said lien. He therefore prays that he may be decreed to be entitled to a lien upon the land for the taxes and legal expenses at the time of obtaining said deed, together with interest at 25 per cent, from May 5, 1884; and that the defendant be decreed to pay him such amount, together with his costs; and that, in default of such payment, the land may be sold to satisfy such amount and costs; and for such other and further relief as equity may require in the premises. The defendant interposed a general demurrer. The cause was heard upon bill and demurrer, and the court below rendered a decree for complainant in accordance with the prayer of the bill, from which decree.the defendant appeals to this Court. We do not think that this bill can be maintained. We cannot extend the statute beyond its terms. Granting the premises, that complainant’s tax deed is void by reason of the defect pointed out in Thomas v. Collins, and that, the taxes being lawfully assessed and levied, he has acquired a lien, as claimed, upon the premises, it does not necessarily follow that he is entitled to the relief asked. The remedy, as prescribed by the statute cited in his bill (How. Stat. § 1167), does not authorize the prosecution or litigation of his claim -or lien, acquired under and by virtue of the .statute, until the rendition of a judginmt against him for the recovery of the land. This was distinctly held in Weimer v. Porter, 42 Mich. 569, and Ellsworth v. Freeman, 43 Id. 488. The counsel for complainant contends that if it appears by any other means, conclusively, that the tax deed is not good, it is not necessary to institute ejectment in order to be entitled to file a bill to enforce the lien, as that would be doing a useless thing, which courts never require. But it is to be remembered that the lien of the complainant, if he has any, is purely a statutory lien, and the same section which creates the lien also fixes the remedy, and directs when it shall be enforced. The courts have no power to enlarge this statute. We do not deem it necessary to determine whether or not the complainant has a lien upon the land, or to decide whether the remedy sought to be enforced, under section 1167, was destroyed by the repeal of the tax law of 1869 by Act No. 11 of the Laws of 1882. The complainant contends that, under section 118 of Act 153 of the Laws of 1885, he can maintain his bill, as that section provides that the lien of the State on the land shall, by any tax deed issued by virtue of the decree of any circuit court in chancery in pursuance of the tax law of 1882, be transferred to the grantee therein, and that any person claiming title under or by such tax deed may, at his option,, within two years after the act takes effect, treat the title so-acquired by him as such lien on said land for the amount of the consideration expressed in such deed, and enforce the-same by a suit in chancery, upon his stating in his bill, among other things, that he waives any claim of title in fee to such land. He claims the bill conforms with the requirements of this statute. We must hold, in accordance with former decisions of this Court, that the provisions of said section 118, relied upon by •complainant, are not fairly within the title of the act of 1885. 'The title reads as follows: “An act to provide for the assessment of property, and the levy and collection of taxes thereon. ” The tax law of 1869, with a precisely similar title, was held in Clark v. Hall, 19 Mich. 356, and Smith v. Auditor General, 20 Id. 398, to be entirely prospective, and that such title ■indicated that it was passed to regulate the assessment, levy, .and collection of taxes for the future; and in Thomas v. Collins, 58 Mich. 64, the act of 1882, with precisely the same title, was held also to be prospective, and that a sale under said act, of lands for the taxes of 1881, was not authorized. Section 70 of that act, which provided for the sale of lands assessed or returned as delinquent for non-payment of taxes thereon, was in effect declared invalid. It was held that the sale therein provided was not within the legitimate province of the provision of the act as contained in its title. The enforcement of a lien upon lands for taxes assessed previous to the passage of the act, by a sale of the lands as in case of a mortgage, and giving such a lien a preference over all other liens except liens held by the State, does not come naturally or legitimately, under the head of the assessment, levying, and collection of taxes in the future. Therefore such provision is unconstitutional, being in violation of section 20, art. 4, of the Constitution. The decree of the court below is therefore reversed, and a decree will be entered in this Court sustaining the demurrer of the defendant, and dismissing complainant’s bill, with the costs of both courts against him. The other Justices concurred. See Goodman v. Nester, post, 662.

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Chajiplin, J. On the thirtieth day of October, 1882, as "Phillip A. Mynning was crossing a spur track of the defend ■ant, he was run over by a train of cars and killed. The accident occurred while he was walking along one of the public streets in the city of Big Rapids, between six and seven o’clock in the evening. At this time it was quite dark. A rain-storm was approaching, with considerable wind from the south-west. The deceased was walking rapidly east, and the train was backing from the north. This action is brought by the administrator of deceased to recover damages for the wrongful and negligent killing of Phillip A. Mynning. After averring the duty of the railroad company in the running and management of its trains at the point in question, the negligence claimed is set out in the ■following language, namely: “ Running said locomotive engine, with a train of freight ■cars attacheds, backward, and at a high and dangerous rate of speed, in the dark, without giving any signals by sounding the whistle or ringing the bell, and without having any light at or upon the rear end of said train of freight cars attached to said locomotive engine, or any head-light upon said engine, to warn people who were crossing, or about to cross, said spur or side track of said defendant, running over and crossing said Baldwin street, of the approach of said locomotive engine, with a train of freight cars attached, and so that the employés of said defendant upon said locomotive engine, and upon said train of freight cars attached, who were operating ■and managing said locomotive engine, and the said train of freight cars attached, could see persons who were crossing, or about to cross, the said spur or side track of said defendant where the same crosses said Baldwin street, by reason whereof the said Phillip A. Mynning, who was lawfully walking along said Baldwin street at the point where said spur or aide track crosses the same, and while he was in the exercise of due and proper care, and without fault or negligence on his part, was struck and run over by said freight cars attached to said locomotive engine, so willfully, recklessly, wrongfully, and negligently run and operated by said defendant, as aforesaid, whereby, and by reason whereof, the said Phillip A. Mynning was then and there, to wit, at the city of Big Rapids, in said county of Mecosta, on the day and year aforesaid, struck by said freight cars attached to said locomotive engine, ■and instantly killed.” The testimony introduced upon the trial respecting the defendant’s negligence was conflicting, and consequently, upon that point, was a proper question for the jury to determine. The main question in the case, however, turns upon whether the deceased was himself in the exercise of ordinary care at the time of the accident, and whether he did not, by his own careless or negligent conduct, or by the neglect to exercise due care, contribute to the injury complained of. After the testimony on behalf of the plaintiff was closed^ the defendant orally demurred to the evidence, and moved the court to direct the jury to find a verdict for the defendant, on the ground that the plaintiff’s evidence established affirmatively and conclusively that plaintiff’s intestate was-wanting in due care, and that his own negligence contributed to his death. The court declined to hear argument, and overruled the motion. The testimony subsequently introduced did not in any respect vary the probative force of that given upon this point when plaintiff closed his case. Defendant’s counsel again requested the court to instruct the jury that,, under the evidence in the case, the injured or deceased person was guilty of contributory negligence, and their verdict must be for the defendant. The testimony is all returned in the bill of exceptions, and it is proper that this question should be considered first; for, if the point is well taken, it virtually disposes of the case,, and the other errors assigned become unimportant. Counsel for plaintiff claims that it does not lie within the province of the trial judge to take the case from the jury, but that it is the privilege and right of the jury to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case upon trial. As a general proposition, this is true; but, when there is a total defect of evidence as to any essential fact, the case should be withdrawn from the consideration of the jury. Conely v. McDonald, 40 Mich. 158. The motion made at the- close of the plaintiff’s proofs raised precisely this question: Whether, taking all the testimony introduced by plaintiff as true, and all legitimate inferences to be drawn therefrom, there was any evidence tending to prove that the deceased was in the exercise of ordinary care at the time of the accident; the defendant claiming that it affirmatively appeared from such testimony that the negligence of the deceased contributed to the accident which resulted in his death. This raised a question of law, which it was the duty of the trial judge to decide. If, at the time the plaintiff closed his proofs, there was no evidence upon a material point in issue upon which the plaintiff had the burden of proof, or if it affirmatively appeared by his own showing that he had no cause of action upon the undisputed testimony introduced by him, the defendant was entitled, at that stage of the case, to a direction from the court to the jury to find a verdict for the defendant. Equally so, under the same circumstances, was defendant entitled to such direction after all the evidence was introduced. It is the duty of the judge when asked to do so, before submitting the case to the jury, as a preliminary question of law, to decide whether there is any evidence on which the jury could properly find a verdict for the party on whom the onus of proof lies; and, if there is not, he ought to withdraw it from the jury. Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584. The ruling of the court denying the motion, and refusing the request to charge, renders it necessary to examine fully the testimony introduced upon the trial in order to determine whether error in law was committed by such ruling. The Muskegon river runs nearly south through the city of Big Rapids. Baldwin street runs east and west, and is connected on either side of the Muskegon river by a bridge. A mill-race leading from the river, north of Baldwin street, crosses the street about 150 feet east from the bridge. The spur track of the defendant extends, from a point south, to the mills along the race, and to the river above the mills, and at the point where it crosses Baldwin street is between the race and river, — about 55 feet from the race, and 90 feet from the river. On the night of the accident there was a lamp at the east end of the bridge over Muskegon river, which was lighted. In approaching the railroad track from the west, there was nothing to obstruct the view north of Baldwin street for a distance of about 400 feet. The train had been made up north of Baldwin street, and consisted of box cars and flat •cars laden with lumber, — 11 in all. The deceased, at the time of the accident, resided about one mile east of the city, but had lived in the city, and was familiar with the railroad crossing at Baldwin street. Three witnesses were introduced by plaintiff who saw the •accident.' Two of these, Mr. Wakeman and Mr. Trafford, were walking west on Baldwin street. When they were upon the bridge which spans the mill-race, and about 55 feet from the crossing, they saw the train approaching from the north. They testify that a person with a lighted lantern was upon the rear car, swinging the light as if signaling. The train was in rapid motion, and neither heard the sound of bell or whistle. They both saw Mr. Mynning approaching the crossing from the west. He was then about 20 or 30 feet from the crossing, walking rapidly, bent a little forward, as was natural to him, with his head down. He did not pause, or look to the left or right, but kept on, and stepped upon the crossing, and was struck by the rear car, and taken from their sight. The opportunity of these witnesses for observation was aided by the lamp which shone from the end of the bridge; the deceased being between them and the light. They were looking at him from the time they first saw him until he was struck by the train. The other witness was John McLaughlin. He was walking east on Baldwin street, and saw Mynning about 75 feet ahead of him, as he was crossing the bridge. As he came off of the bridge, Mynning was 25 to 30 feet from him, and he saw Mynning walk right in front of the train, and saw it strike him. He saw the train before it struck Mynning, and stopped. He testifies that Mynning did not stop on approaching the crossing; that he was looking at him, and did not see him look either way, but he walked pretty fast. Thomas P. Mortenson did not see the accident, but was approaching the crossing on Baldwin street, going east, when the train passed. He had a horse and buggy. When he came to the end of the bridge, his horse stopped, and he looked up, and saw the train crossing Baldwin street. He saw a light upon the train, but thinks it was upon top of the middle car in the train. He did not see the deceased. William Poison met Mynning between the bridge and the crossing. He says he spoke to Mynning, who was walking rapidly east; that he (witness) walked on west; and, when lie got close to the bridge, he heard a noise, and looked around, and saw the train passing Baldwin street. He heard the puffing of the engine, and saw some kind of show-lights from the smoke-stack, and he gave it as his opinion that,-if he had been within five or ten feet from the railroad track, he could not have seen the train coming, or the light either, on account of the darkness, although he did not think it was too dark to have seen the light. On cross-examination this witness testified that, when he met Mynning, he was close to the railroad track, and about 40 feet from the bridge; that he (witness) went on towards the bridge, and was within 10 or 15 feet of it when he heard the train. The testimony tended to show that Mynning was possessed of all his faculties; and there was no testimony given or claim made that he was not in full possession of the faculties of seeing and hearing. Neither of the above-named witnesses heard any sound óf a whistle or the bell, and all concurred in the opinion that the train was moving across Baldwin street at a high rate of speed. I have given above substantially all the testimony tending to prove that the deceased was in the exercise of ordinary care. It shows conclusively, and without contradiction,— 1. That the deceased was a man possessed of the ordinary faculties. 2. That he was acquainted with the railroad crossing at Baldwin street. 3. That on a dark and stormy evening he walked at a rapid pace towards and upon the railroad track crossing Baldwin street, without checking his speed, or stopping, or looking, or listening, or taking any precaution whatever to ascertain whether a train was about to pass. 4. That others who were about to cross, whose opportunities for observation were no better than those of deceased, saw and heard the train. 5. That he stepped upon the crossing, and was struck by the train, which ran over and killed him. .The rule with reference to contributory negligence was laid down by this Court in the case of Teipel v. Hilsendegen, 44 Mich. 462, where it was said that— “ The absence of contributory negligence is not necessary to be shown beyond cavil or question. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just .opinion.” The jury having passed upon the conflicting testimony with reference to the defendant’s negligence in not giving warning by the sounding of the whistle or the ringing of the bell, and of the neglect, as alleged, to have a light unon-the rear end of the train, by their verdict in plaintiff’s favor, the negligence'oFthe defendant in those respects must be considered as established, and we have the case of the deceased approaching the railroad crossing upon a dark and stormy night, without any other warning of danger than that afforded by the track itself, the existence of which he knew, and that it was used almost daily in passing engines and cars over it. Had he taken the ordinary precaution upon approaching a railroad crossing, of looking or listening, in order to ascertain if the train was approaching, before stepping upon the track, it is evident from the testimony of the witnesses who witnessed the catastrophe that he would have seen or heard it. The testimony precludes the fact, or any inference to be drawn from the facts, that the deceased exercised any or the remotest degree of caution on that occasion. He passed along hurriedly, as if there was no railroad crossing there. From the testimony it is plain to me that the case is susceptible of but one just opinion upon his want of ordinary care. Ordinary care would have required him to at least look up and down the track before crossing; and, if the night was so dark as to make it difficult to distinguish a train approaching, then ordinary care would have called upon him to resort to his sense of hearing, and to pause, if need be, and listen, before entering upon the place of danger. As was said when this case was here before (59 Mich. 260): “ The track itself is a warning of danger to those who go upon it, and persons about to cross a railroad track are bound to recognize the danger, and make use of the sense of hearing as well as of sight; and,'if either cannot be rendered available, the obligation to use the other is the stronger to ascertain, before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly or carelessly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence.” In the former trial it was not clear that the party did not look and listen, and we thought that, under the testimony there given, the case was properly submitted to the jury upon that point. Hpon this trial it clearly appears that he did not look, nor is there any evidence which would justify the inference that he listened, for the approach of the train. In the case of McWilliams v. Detroit Central Mills Co., 31 Mich. 274, it was said that a passenger along the sidewalk of a public street has a right to expect some warning before any sudden backing of cars after standing still, and there should be very plain proof of negligence to bind him under such circumstances. But in that case the track was a private one,, and it was pointed out that it stood on a different footing than an ordinary track. In that case the plaintiff’s intestate-was struck with the cars, and killed, while crossing a public-street, by the cars being backed up suddenly after standing still. No one saw the accident, and it was not known for more than an hour after it happened. The presumption of law is that the person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject. But where there-is affirmative, direct, and creditable testimony that the person-injured went upon the track without stopping to look and' listen, the presumption is rebutted and displaced. Pennsylvania R. R. Co. v. Weber, 76 Penn. St. 168; Reading & C. R. R. Co. v. Ritchie, 102 Id. 425; Powell v. Missouri Pac. Ry. Co., 8 Amer. & Eng. R. R. Cas. 467; Haas v. Grand Rapids & I. R. R. Co., 47 Mich. 401. Such is the testimony in this case, and there is none to the-contrary. The showing of contributory negligence is much-stronger than in Pzolla v. Mich. Cent. R. R. Co., 54 Mich. 273, and we held in that case that the plaintiff was not entitled to recover because of such contributory negligence,, and we affirmed the ruling of the court below in taking the case from the jury. See, also, Potter v. Flint & P. M. R. R. Co., 62 Mich. 22. Our conclusion is, from the whole testimony bearing upon, the question of contributory negligence, that it affirmatively appears that the negligenqe of the deceased directly contributed to the accident which resulted in his death, and for that reason the circuit judge should have directed a verdict for the defendant. We are referred to the case of Beisiegel v. N. Y. Cent. R. R. Co., 34 N. Y. 622, as holding that a foot passenger on a public crossing has a right to expect some warning upon approaching the railroad track. In that case the plaintiff wasnonsuited in the trial court on the ground of contributory negligence. There was evidence which tended to show that the engine was running at a high rate of speed across a thoroughfare in a city without ringing the bell or sounding the whistle, and that plaintiff both looked and listened before attempting to cross. The nonsuit was set aside on the ground of the defendant’s negligence, and that plaintiff was himself free from negligence. Another trial was had, and the case came before the court of appeals again, and is reported in 40 N. Y. 9, when the court was divided upon the question as to plaintiff’s contributory negligence. James, J., said: “The plaintiff knew that trains were often passing at this-crossing. It was his duty, therefore, before starting to cross-the track from his place of concealment, to have ascertained whether an approaching train or engine was coming, and' within 15 feet of the place where he stood. One step in advance,, which would have been perfectly safe, and a look east, would have shown him the danger; and his omission of this .easy,, simple precaution, demanded of all persons before entering upon a railroad crossing, was gross negligence contributing to the injury, and bars all right of action against the defendant, even though its agents or servants were also negligent.” But in Grippen v. New York Cent. R. R. Co., 40 N. Y. 34, it was held that if the injured party, by looking up the track in the direction of the approaching train, could have seen, it in time to avoid the injury, his omission to do so was negligence, and the refusal of the court thus to instruct the jury was error. This case, in some of its facts, was similar to the' case at bar. The accident happened upon a stormy, snowing; night. The defendant’s servants were engaged in depositing- cars to be unloaded, and in picking up empty freight cars, and were moving a train of six cars backwards along the railroad track, called the South Branch. The plaintiff was familiar with the crossing, and drove a horse and cutter across the railroad track without stopping to look or listen. Woodruff, J., said: “These same considerations, applicable to the conduct of the railroad company or its agents, are alike applicable to the conduct of persons who are liable to be injured. All the circumstances which render it more than usually difficult for them to see or avoid a train are so many reasons why they should be more vigilant and cautious on their part, and, instead of forming an excuse for omitting to use greater caution, impose it upon them with greater strictness.” And see, upon this point, Harty v. Central R. R. Co., 42 N. Y. 468; Gorton v. Erie Ry. Co., 45 Id. 660; McGrath v.New York Cent. & H. R. R. R. Co., 59 Id. 468. In the case last above cited, Mr. Justice Andrews said: “ In respect to a person traveling in a highway which is crossed by a railway, it has been settled, by a series of adjudications in this state, that he is bound, on approaching a crossing, to look and listen, if by so doing he can discover the proximity of a moving train, and that the omission to do so is an omission of ordinary care, which will prevent his recovering for an injury which might have been avoided if he had used his faculties of sight and hearing. ” And, again: “His duty to keep his faculties alert, and look and listen, does not at all depend upon the fact whether the railroad company does or does not perform its duty in giving the statutory signals.” The decisions in New York are in accord with those in this State, and is the established doctrine of all courts where the principles of comparative negligence do not obtain. The judgment must be reversed, and a new trial ordered. The other Justices concurred.

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Morse, J. This is an action of ejectment. The circuit judge found the facts substantially as follows: February 3, 1873, the plaintiff executed a mortgage to defendant Platt for $340 upon lots Nos. 138, 139, and 140, in the village of Berrien Springs. He was then living on lot No. 139, occupying it with his family, consisting of several children, as a homestead. Plaintiff was married in 1849. His wife was living at the date of the mortgage, but did not sign it. She was not at that time divorced, but the plaintiff obtained a divorce from her January 28, 1879. The mortgage was foreclosed by advertisement January 31, 1876, about three years before the divorce. At the foreclosure sale, the defendant Platt bid off the premises, and a sheriff’s deed of the same was made to him February 17, 1877, and afterwards he ousted the plaintiff from possession.- When the mortgage was executed, plaintiff’s wife did not reside with him on the premises, but he and his children occupied lot 139 as a homestead, and had so occupied it for a number of years. It was his homestead when his wife left him, and continued to be his homestead until he was ousted from possession. The court also found as a conclusion of law that plaintiff was not entitled to recover lots 138 and 140, but that the mortgage was void as to lot 139, which lot he was entitled to recover. The main question involved upon the argument was whether the desertion of the husband by the wife operated to bar the constitutional provision which declares a mortgage given upon a homestead without the signature of the wife to be absolutely void. But there are two fatal objections to the judgment, which render it unnecessary to discuss the homestead question. The judgment is entered against both defendants. All the testimony taken is returned in the record. There is no finding by the court, and no evidence to show, that the defendant George H. Martin was an occupant of the premises, or claimed any title thereto in any way. There is absolutely no testimony connecting him with the case. Nor is there any finding, or any evidence, showing the value of lot 139. It also appears that the defendant Platt has died since the commencement of suit. The judgment must therefore be reversed, and a judgment entered here for the defendant Martin.. The record will be remanded for further proceedings in the court below under the statute. Costs of both courts will be recovered against the plaintiff by the defendant Martin. The other Justices concurred. See Stanton v. Hitchcock, ante, 316.

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Campbell, O. J. This case was in this Court, and decided at the October term, 1883 (52 Mich. 174), upon a bill to establish the rights of the various parties under a trust including a lumbering estate managed in the name of the Oscoda Salt & Lumber Company. The controversy brought in for decision the conduct of the trustees, and of Winchester, the secured creditor, and was also intended to get relief for the alleged misconduct of Wasey and Winchester, and their associates or subordinates. A decree was made by the court below, substantially sustained by this Court, leaving the trust in the same hands, and ordering measures to close it up. In pursuance of our decree the parties proceeded to an accounting, and upon most of the balances there is no complaint made. But various charges for losses were allowed against Winchester, and some also against Wasey, and certain of their respective claims were rejected. The cause is now before us on appeal, to obtain the disallowance of the sums alleged to be wrongly charged, and the allowance of what is claimed to have been wrongly rejected. A preliminary series o£ objections is made, on behalf of Winchester, that there are no specific charges in the bill, and no provisions in the decree, which opened the door to an inquiry into the losses and other items charged against Winchester,who, it is said, is entitled, on the record, to his whole debt of $275,-000, less actual payments made in reduction of it, without regard to the,cross or counter claims that are set up as arising from his legal misconduct; and it is also insisted that Winchester is not liable for conduct of others not actually engaged in or authorized by himself. Wasey’s objections are chiefly based on his discretionary powers as trustee, which he insists protect him where there was no actual fraud. In our opinion, there is not much in this record, so far as the disputed items are concerned, which has not already been settled by our former decision. It was plainly Baid there that, in an action like this, to call persons to an account for the maladministration of a trust, it was not reasonable to require a complainant to set out in his bill the misdoings which he could not be expected to fully understand until he had obtained disclosures. It was there said: “It is not generally presumable that the beneficiaries have such information from independent sources. When, therefore, a bill is filed to call trustees to an account, any testimony throwing light on their management bears directly on the performance of this duty, and may be considered in taking the accounts and in determining the view to be taken of the conduct of the trustees.” It was also our opinion that, after Winchester had attempted to repudiate complainant’s rights, he and Wasey had been so connected in their dealings that he was individually responsible for their effect on the interests of the trust. Upon both these points we see no reason to change our former views. There has been no testimony taken which Winchester has not had the means of meeting as fully as if it had been foreshadowed in the pleadings. And the approval and acquiescence of Winchester in Wasey’s view of his powers, and the almost complete actual approval of his specific acts, appear more fully now than before. We shall not depart from our previous conclusions; and while there is, in some instances, a strong argument made to show that they do not cover some portions of the present dispute, we do not propose to change any results that depend upon them. Before considering the separate items, some reference is proper to certain considerations" of natural equity which were urged upon our attention. We do not doubt, and are entirely convinced, that in the outset of these transactions Mr. Winchester had gone to further lengths than wisdom would warrant in giving accommodations to complainant and his associate, who had expanded their business under this encouragement until it became unmanageable, and would have swept away all their valuable property had he not compromised and reduced his demand, and agreed upon this trust arrangement to work it out. Counsel are justified in claiming this was very liberal treatment. But it is quite manifest that the course which led to it was a very dangerous, one for all parties; and, while it would not sound well for complainant to find fault with Winchester for humoring his schemes, the terms of the trust are inconsistent with the continuance of any such wild course in the future. And, whatever may have been complainant’s moral debt of gratitude for the past, it in no way relieved Winchester and the trustees from doing business on business principles. Most of the present difficulty has been caused by a course of dealings which, as was pointed out in our former decision, departed radically from the purposes of the trust, and the testimony on the accounting indicates that nothing but a remarkable course of prosperity in the lumber interests has made it possible to work out a favorable issue from dealings that depended on too many contingencies to be safe in their nature. Winchester’s death or failure would, at more than one time, have been disastrous to the trust in the shape in which these dealings put it. Trustees have no right to assume such risks; and had not Wasey dealt with the funds on the assumption that Winchester was the substantial beneficiary, and with his co-operation, the management might have been different. The result, as now shown, is favorable, and the residuary property is valuable, and no dishonest appropriation has appeared on the part of any one. How far this result would have followed from more timid or cautious management we cannot do more than conjecture; but it does not appear very plainly that the profits have exceeded what would have been realized from a similar property in ordinary hands. The chief items charged to Mr. Winchester, and objected to, arose out of the transactions in Cleveland, known as the Monroe transactions. It appears that in 1880, about the time when complainant was practically shut out from the business, a written contract was made between Monroe Brothers & Co. and Mr. Wasey, acting in the name of the Oscoda Salt & Lumber Company, which was the business name of the trust, whereby the latter agreed to furnish Monroe Brothers & Co. such lumber as they should need, upon these conditions, in substance: The title to all lumber then held by Monroe Brothers & Co., and of all future shipments, was to be in the name of the Oscoda Company till fully paid for, and insured by the Monroes, to be invoiced to them at agreed prices, and provided for by notes or acceptances; the Monroes to bear all expenses and receive all profits, keeping their capital, estimated at $25,000,. in Cleveland, with the right in the Oscoda Company to inspect the books, and wind up the business in case of diminished capital or the death of W. R. Monroe. In March, 1882, a planing-mill was put into the same conditions of title. This contract contemplated power in the Monroes to sell the lumber without restriction. It contained on its face no promise or purpose of doing any more for the Monroes than selling them lumber on time paper. It was, as we held before, an arrangement which, without any further privileges, had the object of putting a practically unlimited amount of the trust property in another jurisdiction and at serious risk. But it now appears more fully than it did then that this Cleveland business was so conducted that paper aggregating several hundred thousand dollars was discounted by or through Winchester, on the credit of the Oscoda Company, for the benefit of this business, a considerable portion of which was really accommodation paper, having the effect of loans or advances by the Oscoda Company, outside of the discounting or negotiation of paper given for invoices; and it is impossible from this record to completely disentangle the various items, or get at their origin. Out of this confusion of accounts and interests it appeared that in the spring of 1883 a balance stood against the Monroes of more than $190,000, which was practically unsecured except by the title nominally held by the Oscoda Company, in accordance with the contract of 1880. It is even doubtful whether that balance actually represented lumber the invoices of which had been met by notes or drafts remaining unpaid. So far as it did not, there was no security beyond personal liability. It is not necessary to follow out this matter into its details, and it would not be practicable to do so on the testimony. It is probable, and we are inclined to think it is certain, that there was not lumber at Cleveland to any such amount as would cover this balance. All the property there, including the lumber, did not exceed it much, if at all. In February, 1883, a freshet swept away a large quantity of lumber from the yard at Cleveland, and damaged most which remained. Considerable money was spent by Wasey to gather up lumber which was swept off, and to purchase the claims of neighboring dealers in lots which had become mixed and not distinguishable. Thereupon an arrangement was made between Monroe Brothers & Co. and Wasey, with Winchester’s approval then or subsequently, and the testimony seems to indicate that the plan has been contemplated earlier, whereby a corporation having the same name of Monroe Brothers & Co. was got up, and all the property of the same firm, which had already been conveyed, February 7, 1883, to the Oscoda Gompany) was put in this corporation, whose object was to continue the same business, as well as to dispose of the damaged lumber, and clear off the Oscoda debt. By the transfer of February 7, Wasey agreed that Monroe Brothers & Co. should be released from any personal liability on the Oscoda debt beyond what could be realized out of the assigned property. The Oscoda Company, in its ultimate receipts applicable on its claims against Monroe Brothers & Co., failed to receive about $31,000, and between $4,000 and $5,000 interest, which should have been paid on account of that concern. The chief reason given why Winchester should not pay this is that the Cleveland business was carried on in pursuance of a plan approved by complainant himself, as it was intimated in our previous decision that, unless this was so, the dealings were in such disregard of the trust conditions as to receive no support from them. We discover nothing in the record which supports any such idea. There is testimony tending to show, in a very general way, that complainant would have been willing to enter into liberal arrangements with Monroe Brothers & Co., but none that any such arrangements were matured, or that he would have been willing to give unlimited, time and credit to a firm who were to have all the profits and run no serious risks. The business done went far beyond anything contemplated by the agreement of October, 1880, and involved money dealings and negotiable paper transactions quite foreign to anything hinted at in that document, even if it had been approved. And, furthermore, Wasey had no authority, without, at least, the intelligent approval of his co-trustees, to close up the debt by the compromise, if it may be so called, of February 7, 1883, and still less to embark the trust interests in a partnership or corporation in which the trustees had no control. Those dealings were really Mr. Winchester’s dealings, in which no one else was recognized as actually interested, and no one else was allowed to meddle. The point made that, by the decree, an election was made to take the Cleveland interests, and that they must be taken as found, is not, in our opinion, applicable. It is by no means clear to us that the upshot of that business was not such profits as would have made up any deficiency; but it is enough to say that pursuing a trust fund in the hands of a misconducting trustee cannot be construed as a waiver of claim for his deficiencies, unless,. possibly, when there are two funds to elect between. But here the allowance is only made for a balance remaining after the trustees have applied all that they received; and the only question is whether, by the agreement of February 7, 1880, such balance was extinguished. An item of $3,474.33, due from Monroe Brothers & Co. to the Oscoda' Company, is claimed to have been assigned to Winchester .in December, 1883. This was during the new corporate arrangement, in which Winchester had a chief part. We think the testimony shows that this assignment was made as claimed, and was a proper charge. There is also a claim arising out of a shipment of certain lumber by the Agnes, which Winchester claims was not authorized or accepted, but which Wasey swears was authorized. We do not feel disposed to disturb this allowance. There is also a dispute about 100 shares of boom stock, which was charged to Winchester in December, 1884, and on which he is charged with a dividend of $1,725. These shares are part of a larger amount issued partly in consideration of certain booming rights granted to the boom company by the Oscoda Company. They were sent to Winchester, as the trustees claim, to hold merely as security. He claims that, under the trust, all proceeds of real estate were to be turned out to him, and that this stock was on that footing. But it appears that up to December, 1884, the Oscoda Company received and applied all the dividends as their own property, and that Winchester never claimed them; and even in 1884 it rather sec-ms that it was the spontaneous action of Mr. Gowanlock, the secretary of the boom company, who sent the dividend, and not any demand from Winchester that occasioned it. While the release of booming rights might possibly, under some circumstances, have been treated by the parties as a sale of real estate on which Winchester was entitled to the proceeds, the fact that it was practically treated otherwise ought to leave the matter where they placed it. It was properly relegated to the trust fund. The overpayment to Wasey, beyond his authorized salary, is covered by our former decision, and was properly set down against Winchester. We also think that the charges for overpayment of E. F. Wasey, M. E. Gay, and E. K. Gowanlock are properly made. In the cases of Gay and Gowanlock, they had regular salaries which were understood and approved. The overpayments •were not made by any concurrence of the trustees as properly due them for wages, and Mr. Wasey had no right to benefit them in an indirect and practically concealed way. They acted — Gowanlock especially — in disregard of Henry N. Loud’s rights as trustee, and in the interest of Winchester, under Wasey’s approval. Eben F. Wasey’s allowance appears to be as large as would have been agreed upon; and in his case, as in the other cases, George Wasey could not determine on these outlays without some reference to his colleagues. Winchester’s approval was not enough, unless he was the only beneficiary, which he was assumed to be. The deduction of two per cent, on lumber shipments claimed by Winchester is not, we think, sustainable. That was understood to be the rebate for cash sales. The sales on which it is claimed were time sales,' on which he got the benefit of four months’ interest, which would be a little more or a little less than two per cent., according to the rate of interest. We think Winchester should not have been charged with about §10,000 resulting from a loss on notes held by the Oscoda Company against Davison & House. These had been received with Monroe Brothers & Company’s indorsement, and were renewed without it. The makers failed, and paid, but 40 cents on the dollar. This paper had gone into the hands of the trustees, and they held it. Winchester had. nothing to do with the extensions and consequent losses. ■ An item of $305 for Wasey’s traveling expenses was regarded below as concerning Winchester’s affairs, rather than those of the trust, and we are of that opinion. Winchester’s claim for interest on interest was properly disallowed, as it came within no statutory authority. He also claimed $70,000, or $10,000 a year, for financial assistance rendered the trustees. That assistance consisted chiefly in discounting paper, for which he received the proper discount rates. He receives the stipulated interest on all of his secured debt. Alargo amount of these discounts.were* such as ought not to have been obtained at all, and that whole mode of doing business was foreign to the proper business of the trust, unless confined to business paper. No good reason has been alleged why any compensation should be given him. Except as to the Davison & House matter, we think the decree correct in its items as to Winchester. It is suggested, however, that by this decree Gay’s estate should not have been benefited, even if Loud’s is, because it is claimed Gay acquiesced in most of the irregular doings. But the question here is, how much was due on the trust mortgage, and that is not divisible. We do not think Gay is shown to have been at fault personally in all these matters, and we do not think the division is practicable. Wasey also appeals from so much of the decree as affects him adversely, which is done— 1. By compelling him to refund certain disbursements, and replace certain losses. 2. By refusing him larger compensation. The disbursements of Mr. Wasey in this suit, of b.etween $200 aud $300, were apparently necessary, and, under ail the circumstances, aS he was retained in the trust, we think he was entitled to them. We have had more doubt about the disbursements connected with a suit by Monroe Brothers & Co. against the trustees of the Oscoda Salt & Lumber Co. This suit, how- over, does not appear to be collusive; and, whether Wasey ■could or could not appear for his colleagues, he had to appear for himself, and the contest may affect the trust interests. Without passing upon the sufficiency or effect of the proceedings, we think Wasey was justified in not assuming he ought to let them go by default, and should be protected in his bona fide reasonable expenditures. These should therefore be stricken out of the decree. The sum of $350 paid to Perry Prentiss to settle an adverse claim against the property, as well as a deduction of $95 from an account against Oahoon & Hutchinson, whether wise or unwise, were not beyond the fair judgment of a business man. He is also charged with $3,018.53, as a loss on a sale made to F. Hempy & Co., on the ground that it ought not to have been made. Monroe Brothers & Co. made the sale subject to Wasey’s willingness to make it on Hempy’s paper alone, without their indorsement, as they did not wish to increase their own credit to that firm. Hempy & Co. appear to have been in good credit, and there was no special reason to doubt their soundness. We cannot see why Wasey should be held responsible for what was not apparently an unwise sale. The commissioner undertook to decide that Mr. Wasey’s salary, as fixed and approved by this Court, should only run ■until September, 1885. That was a matter beyond his jurisdiction, and the salary should run until the date of the decree below, when it should cease. It was directed to continue until the further order of the court. As to Mr. Wasey, then, the charges against him should be ■disallowed, and his salary stand as above mentioned. We are not inclined to increase it. While Mr. Wasey has not perverted the trust to his own advantage, and has no doubt acted on an idea that he was doing what was competent, he has, however, honestly departed very widely from his duty to complainant, and from the safe and legal methods of dealing with trusts. A man may lawfully run any risks he chooses with his own business, but a trustee has no right to-use the trust to accommodate other parties, or to enter upon an extended course of bill discounting and indorsing with customers. When we deduct the enhanced value of the trust property due to natural advances in the prices of lands and timber, the increase, though large, is not altogether the-result of good management; and we cannot avoid seeing that any casualty to Wasey or Winchester, with the accounts kept, as they seem to have been, in Wasey’s method of book-keeping, which failed in tracing out the identity of a considerable number of transactions, mast have been disastrous. Mr. Wasey has shown great business capacity and energy, and, had the business been his own, his course would not have-been unusual. We see no reason to differ from the court below in the matter of costs and expenses allowed, or in the saving of questions which may arise out of the Cleveland suit, which we-have no means of fully determining now. As the majority of Winchester’s exceptions are disallowed, and but one of them sustained, we think that, as between him and complainant, each should pay his own costs in this-Court. Wasey will be entitled to a solicitor’s fee here and in the circuit, but no other taxable costs. The decree will be affirmed, except in the particulars-specified. The other Justices concurred.

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Campbell, C. J. This was a suit brought to recover damages suffered by plaintiff in the same transaction that resulted in the death of his father, on behalf of whose estate a recovery was had, affirmed by division of this Oourt in the case of Klanowski v. Grand Trunk Ry. Co., 57 Mich. 525. In the present case some new facts were brought out, and the record presents some questions not fully developed before. Plaintiff recovered damages. It will not be necessary to give many details, as they would be to some extent a repetition of the old decision. We observe that all of the counts in the declaration in this cause lay the injury as done at the crossing of Chene street, and lay the duties in reference to that crossing. The occurrence was not at that crossing, but at one north-east of it, on the Miller road. The briefs do not lay stress upon this variance, which is a very serious one. If the declaration is printed according to the original record, it is plain enough that it cannot maintain the verdict, as an error assigned is that the plaintiff could not recover on the showing. As, in our opinion, a new trial must be granted on other grounds, we make no further allusion to it. The facts, as presented for plaintiff, though controverted in many respects in important details, are, in substance, these: On June 23, 1883, at a little after 9 o’clock in the evening, 'the Grand Trunk Railway train, approaching from the northeast, struck a two-horse wagon in which plaintiff and his father were sitting; the locomotive hitting it in the forepart, and throwing out the persons in it, killing the father and severely injuring the plaintiff. This was on Miller street or road, which at that place was crossed by the railroad at an angle of about 35 degrees. Chene street runs at right angles-with the Miller road, which it crosses about 10 rods northerly from the railroad track, and the Ohene-street railroad crossing is not far from 20 rods distant from the place of the accident. Plaintiff lived on Chene street, according to the map-in evidence, about 30 rods south of the railroad. Some of the testimony, which is vague, puts it further. About 135-rods along the railroad from the place of the accident, northeasterly, is a crossing on the Conet road, known as the Bigelow crossing. This Oonet road is nearly parallel with Chene street, and crosses the Miller road some 80 rods, or thereabouts, southerly from the railroad. That afternoon plaintiff had walked up Chene street to the railroad, and along the track to the Miller crossing, and then followed the Miller road to the Conet road, and along that road, across the railroad, to a place where his father was at work plowing. In the edge of the evening they left the field, in a wagon drawn by two horses, and followed down the Conet toad to the Miller road, and then turned into that, and drove in the direction of the railroad and Chene street. They stopped at Miller’s house, about 30 rods from the railroad, and not far from three-quarters of a mile from the field, along the road they traveled. The father went into Miller’s, and stayed there a good while, the precise time not being fixed. He came out again, and got into the wagon, which the boy was driving, and they started up the road on a walk. The witnesses put the time not far from a quarter past 9. The boy, who was about 14 years old, sat at the right side of his-father, on a board seat laid across the wagon. The train from Port Huron was a few minutes past due, and running about 40 miles an hour, or a little more. The Miller road was rather lower than the highest part of the railroad track, and began to rise when it approached the track, and crossed' the railroad ditch on a plank bridge, which was laid diagonally along the direction of Miller street, and was, as claimed by plaintiff, about eight or nine feet long. Plaintiff says that when he came opposite the telegraph-pole, which is not exactly located, but seems to have been near the intersection of the Miller road with the railroad, he stopped and listened, but heard no noise and saw no light-lie then drove on, and paid no further attention to anything but his driving. The horses were on the track, and apparently just over it, or nearly so, when the locomotive struck the team and wagon. The plaintiff’s claim is that he was careful, and not negligent, and that defendant was negligent in omitting the statutory signals, and in running too fast. Defendant denies-its own fault, and claims that plaintiff was careless himself. No specific neglect is charged, except omitting the statutory, signals. One of the counts puts the speed at 40 miles, and perhaps it charges inferentially that this was too fast. On the trial, and in this Court, considerable stress was-laid on the fault of the railroad in leaving a growth of' bushes on its right of way in and beside the ditch, tending, as claimed, to obscure the view of the road. There was evidence that there was a growth of bushes along that part of the Miller road further than the telegraph pole. There was-a conflict of testimony concerning the bushes near the track, and concerning their height. Plaintiff represented that he saw the dim outline of those bushes between him and the-railroad when he stopped to listen. There was positive testimony on the other side, and some on his side, not consistent with any such difficulty. He testified he did not hear or see anything indicating the approach of the train. There was testimony of witnesses on both sides, of several persons who-were near by, who both heard and saw the train plainly.. "There was positive testimony that all the proper signals were given. There was testimony, on the other hand, of persons who did not hear all the requisite signals. Upon the two main issues, namely, defendant’s carelessness .and plaintiff’s care, the conflict of facts is alleged to have •existed. All of the testimony concerning plaintiff’s own conduct is what he says himself. There is some further testimony intended to supplement it by showing the surroundings. In dealing with the question of plaintiff’s care, less attention was given than should have been to the fact that plaintiff’s father was with him, and more or less familiar with the neighborhood. It is certainly remarkable that neither of them discovered what was seen and heard by so many others. There ean be no doubt that when they reached the bridge crossing, if plaintiff had gone to his horses’ heads, and looked up the track, he could not have failed to see the train, whether he could have heard it or not; and with two in the wagon, if both had their wits' about them, there should have been no difficulty in taking the necessary observations. It is very difficult to distinguish the case from many which appear in the reports where persons approach crossings with stolid indifference, and are injured by trains passing. Except the one stop near the telegraph pole, no attention seems to have been given to the situation. It is not necessary to the ■decision of this case to determine — and in the absence of • some explanations which the jury may have had, and we have not in a sufficiently tangible shape, we cannot fully determine — whether there was not evidence enough of care to go to the jury. It is evident the jury gave plaintiff the benefit ■ of all the doubts. Objection was made to the testimony of Mr. Yoelkner, who represents plaintiff in this suit, and gave an account of some ■ experiments he made under what he supposed to be similar • circumstances. He says, in substance, that he went out with his brother in a wagon like plaintiff’s one night in the following August, and placed himself, without measurements, as he says, about where the boy told them he stopped, and watched for the approach of the train. He put his wagon-on the Miller road, and says “ somewhere near the telegraph pole, and at 9:30 we saw a light.” This was, as he says, before the bushes were cut away. He then gives this account: ^ There was a light; that is, the head-light. It appeared,, and I left my brother standing in the wagon, and I jumped out, and walked to the track to see how long it would take. That was the purpose I went out there to see, — how long it would take to walk to the track; and I walked rather fast, and at the time I got to the track the train was there passing me;, and I took the time, and it took fifty-five seconds; that is, the time I saw the light and I jumped out of the wagon and got to the Chene-street crossing.” He says he considered the train was running 45 miles an hour, the same that it was running the night of the accident. On his cross-examination, he indicates that he proposed to imagine himself as Klanowski driving the horse, and find out the exact time it would take from seeing the light till the-train struck the crossing, and that he ran instead of walking. On the redirect he said it took him the 55 seconds to run 65-feet. . It is not unlikely that this peculiar experiment had weight with the jury. It does not appear just how he measured the time, and it is a remarkable showing of running that-traverses but a little over a foot in a second. At two or three miles an hour, the crossing would have been made safely on this basis. But the testimony was not admissible. It is-never proper to leave to witnesses the determination of matters which can be determined by the jury. With the facts established in regard to the various elements of plaintiff’s-, story, their effect would be within the estimate of any intel ■ligent jury. The facts themselves must be determined beJore any conclusions could be drawn from them. In People v. Morrigan, 29 Mich. 4, an attempt was made .to show by experts whether certain things could or could not be done, involving no science, but ordinary facts, and the testimony was held to have been properly excluded. In the same, case, where the distinct fact was material whether a parcel of a certain size could be taken out of a pocket which had been changed, actual experiments with such a parcel in the pocket, before it was changed, were held proper, as involving a single and determinate fact, showing the capacity •of that particular pocket, which was no longer within reach. The distinction is obvious. In the present case, even if experiments could be of any use, Voelkner took for granted ■distances, locations, and probabilities of speed, none of which had been or could be verified. There were no elements of •certainty in the comparison, which, to be of any value, must have been exact, and beyond dispute or variation. His testimony as to speed on the same night when he experimented was also objected to, and the objection was well taken. While he professed to fix the period of the experiment at 55 seconds, he gave no certain dataos to the distance traversed by the train during that time. There were several objections to the course of the judge in ■his charges, which can be best referred to by comparison. The judge confined his charge to giving or refusing specific requests, except that, in a few instances, he qualified some of •defendant’s requests. The jury had no general cautions or instructions, and the case was one where they needed to be very carefully charged, and where any ambiguity was likely to mislead them. The court charged, in answer to certain requests, that the speed of the train was not negligence, and that, at a common highway crossing, there was no duty to slow down, or reduce .the rate of speed.« He charged that if the hell and whistle were not sounded as required by statute, and. this contributed to the accident, defendant would be liable, in case there was no fault in plaintiff. He also charged that if they were rung ■there could be no recovery. But after this charge, which made the ringing and whistling a sufficient defense, he left it to the jury to determine whether there was any unusual circumstance which made the speed unreasonable. This created a contradiction. It left the jury to find that a full compliance with the statutory conditions, which they had already been told would be a defense, was not a defense. Nothing in the declaration or charge pointed out any exceptional circumstances relied on, and the testimony showed none. In the law, all crossings of highways are classed together, and, if there is any reason why a particular crossing is more dangerous than others, it should be averred and proved. Here there was no averment and no proof of anything that distinguished the Miller crossing from any other. This charge directly empowered the jury to diregard what had already been said about the legal right to run at high speed. There is always room for dwelling before a jury, if it is allowed, on the perilous character of a fast train. But the law allows it, and has imposed what the Legislature consider sufficient guards against danger from it. On the other hand, nothing could be more dangerous than irregular running. Reliability in the movements of trains is necessary for the protection of the numerous lives on the trains themselves, which exceed in number any likely to be found at any crossing. Time lost by slowing at one place must be made up afterwards, and any considerable loss always creates danger. There is less danger from trains, whether fast or slow, which run on time, or nearly so, than from any others. Persons at crossings can always inform themselves sufficiently of the-times and conditions of passing, and accidents do not happen very often where both parties are reasonably vigilant. Every collision endangers lives on the train as well as other lives, and any rule which leaves conductors of trains in any doubt as to their duty would do more harm than good. In other parts of the charge a similar difficulty occurs. The jury were left, on several matters, at liberty to conjecture or find difficulties which were not defined, and which the pleadings do not point out. As already suggested, the-declaration is silent as to any negligence from the leaving of bushes by the track, and, except for plaintiff’s testimony, there is very little, if anything, which indicates that they were of any consequence. They did not prevent Yoelkner from seeing the head-light, and plaintiff only indicates difficulty at the' single point where he stood, which is not clearly identified, and where he was apparently opposite bushes along the Miller road, over which the defendant had no control, and which seemed to have been as high as any others.. The charge does not refer to them very distinctly, as bearing on any question of negligence of defendant, but does not. ignore them, and, except for these, there was nothing that could indicate any difference between this and any other-crossing, thus leaving the jury at liberty to find some" difference, and find some additional duty in defendant as to its trains, from which they might infer negligence beyond what was counted on by the declaration. It is never safe or proper, in cases where sympathy is easily aroused, to leave any door open for finding verdicts on supposed general equities or surmises. It is impossible to suppose, in view of tbe record and tbe verdict, that there was no danger in leaving the jury the wide room for speculation which they had power to take. Leaving them the largest scope for legal discretion, we think they were permitted to go further. There were some other points presented which seem to rest on similar questions, and which ' need not, therefore, be referred to more particularly. The judgment must be reversed, with costs, and a new trial granted. Champlin, J., concurred. See Laughlin v. Street Railway Co., 62 Mich. 221 (head-notes 3,4); Woodbury v. City of Owosso, 64 Id. 239. Defendant’s fourth request was given, as follows : “ There is no •statute, ordinance, or other rule of law requiring railroad trains to slow down or reduce the rate of speed at common highway crossings, •by reason of the mere fact of such crossing.” See Carver v. Detroit & Saline Plank Road Co., 61 Mich. 592, for-statement of general rule governing the action of trial courts in actions for negligence. See Potter v. F. & P. M. R. R. Co., 62 Mich. 22, 23, as to duty of traveler at highway crossing. See Guggenheim v. L. S. & M. S. Ry. Co., 33 N. W. Rep. 166, as to* care required on the part of railway company at city crossing.

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Sherwood, J. The bill in this ease is filed by the complainant to obtain a decree of divorce, the cause alleged being cruel treatment and refusal to support. The parties were married on the fifth day of November, 1880. They lived together as husband and wife about a year, in the town of Essex, in the county of Clinton, in this State, when, as the complainant avers, in consequence of the cruel conduct of the defendant, she was driven from his home, and ever since he has failed to receive her back, or furnish her with any support. The complainant, when she was married to the defendant, had two children by a former husband, who had been dead several years. These children, a daughter and son, both lived with the parties so long as the defendant lived with his wife. Personal service of process was obtained upon the defendant. He, however, neither appeared nor answered, and the bill of complaint was taken as confessed against him. Proofs were taken before a commissioner, and the complainant was examined in open court. The circuit judge, after examining the case, denied the relief prayed, and dismissed the complainant’s bill. The case is now before us on her appeal. As the case stands upon this record, we can see no reason why the complainant is not entitled to the relief she asks. The record contains no intimation'from the circuit judge that the testimony is unworthy of belief, and certainly the facts testified to present a case of gross outrage and cruelty. The testimony shows that, during the year the parties lived together, the defendant, being of sufficient ability, neglected to furnish his wife with any means of support, except $2.50; and that for ten months of the year he was in the habit of cursing and swearing at her, and using vile and indecent names, in the presence of her children, to one of whom he gave a flogging, and frequently threatened to drive her children away from home, and finally told the complainant he would live with her no longer, and drove her from the house. We think the failure to support and the cruel treatment shown in this case come clearly within the statute, and entitle the complainant to the relief she asks. The decree at the circuit will therefore be set aside, and a new decree entered in this Court in accordance with the prayer of the bill, with costs of both courts. Tne other Justices concurred. See Minde v. Minde, 32 N. W. Rep. 868, where the proof was held insufficient.

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Campbell, C. J. Defendant was sued in trover for seizing on attachment various articles of merchandise once belonging to the firm of Zemon & Sable, at Clare, in Clare ■county, and mortgaged by them to plaihtiffs for $1,500, and to Jacobson & Netzorg for $2,500. These mortgages were given December 17, 1884. Plaintiffs are merchants in Detroit, and Jacobson & Netzorg in Greenville. The facts were that, just before these mortgages were given, Mr. Jacobson, who was a relative or connection of the members of Zemon & Sable, went to Clare on their request, apparently as an adviser. While there, he advised and procured these mortgages, for the amounts named, to be given to the mortgagees. He acted for plaintiffs on a friendly understanding ■existing, whereby either firm was expected, in any case of ■emergency, to look out for the security of the other. Both mortgages were excessive, each being for several hundred dollars more than the actual debt. Zemon & Sable owed plaintiffs less than $1,000. Jacobson had the mortgages recorded, and took plaintiffs’ mortgage to Detroit, and handed it over the next morning. On that same morning, Jacobson, in plaintiffs’ store, wrote to Zemon & Sable a letter, urging or .advising them to represent to creditors that they owed what the mortgages called for, and to say, also, that Jacobson procured plaintiffs’ mortgage because his firm had guarantied plaintiffs for them to $1,500, but they owed a little more. It ■also urged the sending of what money they took in to Jaeob.son, and some to plaintiffs, and represented that Krolik & Co. would sell them goods at low rates, and would buy such as they did not keep. It was claimed that the plaintiffs5 mortgage was intended to cover future sales. No future credits were in fact given, but a small bill was bought through plaintiffs, and paid for. The questions on trial all related to the validity of plaintiffs5 mortgage as against other creditors. The questions are not numerous, and may be mostly classed together. An objection was raised on the trial to the proof of the several attachment files and records, and it was pressed in this Court that there was no sufficient proof of valid proceedings and judgments. When these documents were offered, the only objection raised was that they were immaterial. It was not suggested that they were informal or defective, and the case went to the jury on the theory that proper attachment proceedings were made out. We do not think the objection can now be widened. They were unquestionably material to the defense, and we must presume they were not defective. Some objections were also made to' inquiries concerning the details and intent of the transactions attending the making of the two mortgages. We think that whole matter was proper to be inquired into. So far as Zemon & Sable were concerned, it was a single scheme, whether right or wrong, and it cannot be said that any part of it did not bear upon the rest. It was important to know their intent, and that of Jacobson, as they were the only acting parties. It was competent to prove their fraud, if they meant any fraud, and to prove their purpose, whatever it was. Whether plaintiffs would be bound, might depend on other considerations which were presented on the trial. But proof of the transaction must come in the order of time before proof of subsequent knowledge and approval, and it was not irrelevant. Assuming that the fraud must be shown as to both, it must,usually be shown consecutively. The Jacobson mortgage was prop erly in evidence as part of this transaction. It was equally relevant, further, because possession had been taken under it, and plaintiffs’ rights were postponed to it by the order of record if it was intended to stand first, or held in parity with it if simultaneous. It is impossible to shut it out. Objection was made to the introduction of Jacobson’s letter of December 18. This came in as a part of Jacobson’s cross-examination, after he had denied giving any such advice as the letter contains. It was legitimate cross-examination, and we can see no ground for not so regarding it. It came within the lines of his examination, and was important, not only as part of the series of transactions, but also to test the accuracy of his memory or his veracity, being admissible for either purpose. But, as the court had a request presented concerning this letter, which was not given, it may as well be referred to here. It was as follows: “ The letter written by Jacobson to Zemon & Sable, in Hebrew (defendant’s Exhibit B), is not to be considered by you in determining .the good or bad faith of Krolik & Co.’s mortgage, as there is no proof' that it was written by plaintiffs’ consent, instigation, or knowledge.” It may be proper to refer again more particularly to this letter, and the circumstances under which it was written. It appears from the plaintiffs’ proofs that - it was written on the day after the mortgages were given, and on the day Jacobson arrived in Detroit, and that he had given full explanations to the plaintiffs of the mortgage and its purpose, including an expectation of further goods, if needed. There is other testimony in the case, but contradicted, that on this occasion one of the firm of plaintiffs, almost simultaneously with the letter, stated to Mr. McG-raw (who, as a creditor, had come in to make inquiries) that the mortgage was given for a debt equal to its face, and that Jacobson had guarantied the account, and taken a mortgage to secure that as well as his own. In the same interview, Jacobson represented his own-mortgage to be for no more than was due, and that plaintiffs5" mortgage was fully due. Upon these representations Mr. McGraw offered to sell out his own claim for 50 cents on the-dollar, and Jacobson and plaintiffs appear to have proposed arrangements which would have taken it up. Why they were-not completed does not clearly appear. It is not for us to settle disputed facts, or to consider what-we might have done had we been jurors. The only question in regard to this letter remaining is whether the request-asked should have been granted. It is true that all the witnesses for plaintiffs indicate that plaintiffs had no knowledge- or concern about this letter; but whether or not there were circumstances which might bear a contrary meaning is a different thing. The request was open to the criticism of being altogether too broad. The court charged very strongly that plaintiffs could not be held for the fraud intended or perpetrated by the other parties, unless they also had a fraudulent intent. Whether this letter showed any fraudulent intent in plaintiffs or not, it certainly tended to show the bad faith of the mortgage, so far as Jacobson, Zemon, and Sable were concerned, which was a main issue. The court could not have been required to give this request as it was asked, and therefore it was not error to say nothing directly about it. But we think there were circumstances which had some tendency to connect plaintiffs with it. It was written in plaintiffs’ office, after a conference upon the mortgage, and contained direct reference to the proposed furnishing of goods, which had been considered in that conference. It-contained cautions to explain the taking of the mortgage as connected with a guaranty by Jacobson, which had, according to Mr. McGraw, been stated to him by one of the plaintiffs, and so done to persuade him of the validity of the mortgage, and answer doubts which might have arisen from what would otherwise look like intermeddling. It reiterates the same representations made, as Mr. McG-raw says, by both parties to him, concerning the amount of the debts, and urged that they should be made to creditors generally. It also purported to convey a message or assurance on behalf of plaintiffs. We are not able to say that a letter written under such circumstances, by the man who had acted for all parties, in the office of plaintiffs, stating what both had adopted as their scheme to influence creditors, and conveying suggestions which infer a common purpose, might not have been legitimately referred by the jury to a common origin, in spite of assurances to the contrary. If so, it is not in our province to weigh the facts. ' With this exception, the charge was very strong in favor of all the law points raised for plaintiffs, and certainly did not err or lean against them. It gave, in substance, all that was asked. If it did not say in so many words that fraud is not to be presumed, it did say that while the burden of proof was on plaintiffs to prove the existence and extent of their debt, and the making of the mortgage, yet it was upon the defendant to establish that there was fraud in the transaction by a preponderance of proof. And we can find nothing which indicates that any improper testimony was let in, or any improper use allowed to be made of it. As the court below would not allow the jury to find against plaintiffs on any ground of sufficient agency in Jacobson to bind them, we need not consider that question, since plaintiffs obtained the advantage upon it in the rulings. The judgment must be affirmed. The other Justices concurred. Plaintiffs’ request was as follows: “ Fraud is never presumed ; it must be proven, and the burden of proving plaintiffs’ mortgage fraudulent must rest on the defendant.”

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Sherwood, J. This case was an action of ejectment to-recover the undivided seven-eighths part of 40 acres of land lying in the county of Kent. • The defendant claimed by adverse possession under tar titles, and one-eighth under the original title. The cause was tried in the Kent circuit, before Judge Montgomery, by jury, aud the defendant prevailed. The plaintiff brings error. Ten errors are assigned; two only relate to the almission of testimony. One of these was to the introduction in evidence of the deed from Jacob W. Winsor to John French, dated June 1, 1868, and the other was to the admission of the record of the patent from the State of Michigan to Nathaniel Newberry. There was no error in admitting these conveyances, and those assignments were abandoned on the hearing. Nathaniel Newberry bought of the State, about the year 1847, the land in question, and received a patent therefor. He died in 1849, leaving eight children, one of whom (Phcebe Jane) was a minor. One of the children, named Nathaniel Newberry, Jr., on the first day of January, 1851, mortgaged the land in question, with other parcels, to the plaintiff; and on June 16, 1851, the widow and other children, except the minor, quit-claimed their interest in the mortgaged premises to Nathaniel Newberry, Jr., who died in January, 1853, leaving one child, a daughter. The sale under the mortgage foreclosure occurred on the twenty-second day of April, 1853, and is the only source of plaintiff’s title, the property never having been redeemed from the sale. The daughter of Nathaniel Newberry, Jr., married Francis M. Bissell. There is no question of the right and title of the defendant to the one-eighth of the property. The property in question was sold for the taxes of 1853 to J. W. Winsor, and deeded. J. W. Winsor sold the same to George W. Hooker, and deeded it October 2, 1858. Hooker sold and conveyed the property to Jacob W. Winsor on the twenty-eighth day of February, 1859. The land was again sold by the Auditor General to Zenas G. Winsor, for taxes of 1857, and deeded January 12, 1860. Jacob W. Winsor and Zenas G. Winsor quitclaimed the property to Jackson French on the eighteenth day of October, 1860. French and wife quitclaimed the premises to Asa B. Gilbert, John J. Lacey, and Y. M. Hamilton, on the twelfth day of March, 1861. Asa Gilbert died previous to February, 1866, and Mary E. Yan Yalkenburg was his widow. February 28, 1866, John J. Lacey and wife and Mary E. Van Yalkenburg quitclaimed the property to Charlotte French. Jacob W. Winsor quitclaimed the premises on the first day of June, 1868, to John French, and John French and Charlotte French, his wife, conveyed the same to Matilda Clinton, on the twenty-fourth day of June, 1870. Matilda Clinton died, leaving Frank Clinton, the defendant, her only surviving child, in possession of the property. Phoebe Jane, on July 11, 1868, long after she had become of age, and had married a Mr. Sherman, conveyed her individual one-eighth of the lands in controversy to Mary A. Bissell; and Mary A. Bissell, September 2, 1868, conveyed the same to Francis M. Bissell; and Francis M. Bissell quit-claimed the said land to Matilda Clinton, subject to tax titles, November 4, 1872, and before Matilda died. The foregoing conveyances, ending with Matilda Clinton, and all of which were duly recorded, show the chain of paper title under which the defendant and his grantors took possession of the property, and have continued the same, and under which and his tax titles he claims to be entitled to the property in suit. In considering the question of possession under defendant’s titles, and whether or not it was adverse, their validity is of no particular consequence. The defendant claimed continuous adverse possession of the property in himself and his grantors from the date of the •deed to J. W. Winsor, in 1853, down to the time of the commencement of this suit, in 1884, and gave testimony tending to show such possession. The possession thus claimed, and its character, was controverted by the testimony offered by the plaintiff. A part of the plaintiff’s testimony upon this -subject was the deeds from Phoebe Jane to Mary A. Bissell, and from Mary A. Bissell to Francis M. Bissell, and from Francis M. Bissell to Matilda Clinton. It was claimed by the plaintiff that Mrs. Clinton’s purchase of the Bissell title •constituted her a tenant in common of the property, it conveying to her the original title to one-eighth of the property, and that she could not be an adverse holder thereafter. , The circuit judge, in his charge, held that prima facie this was true, but that the prima facie ease upon this point might ■be overcome by evidence that the possession Mrs. Clinton then had she continued under the claim of an exclusive right, and with the intention to exclude the plaintiff from any right or interest therein; that such possession, even though against a co-tenant or tenant in common, was adverse, and, upon the •evidence, submitted this question, with the other facts in the ■case, to the jury; and to this portion of the charge counsel for plaintiff excepted. We see no error in this charge. The plaintiff knew of the hostile character of Mrs. Clinton’s possession, There may be .some question, where the party does not go into possession under the conveyance which creates the co-tenancy, whether •such conveyance should be presumed to destroy an adverse holding then existing. Be this as it may, certainly the charge was within the previous decisions of this Court. Dubois v. Campau, 28 Mich. 304; Campau v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14; Campau v. Campau, 44 Id. 31; Knowles v. Brown, 69 Iowa, 11 (28 N. W. Rep. 409). The court charged the jury: “ The defense is that this title of the plaintiff has been wholly divested by the adverse possession, continued for the statutory period. All adverse possession must be open, notorious, continuous, exclusive, visible, and distinct, as well as adverse. Now, wbat is meant by this is that there must be an actual occupancy, as distinguished from a constructive possession, of the property; that is, some one must be in actual possession of the property. Not necessarily living upon the property; if the property is inclosed and cultivated, this would be a sufficient actual occupancy; and if crops were continually growing upon the premises, this would be a visible occupancy; and even though in the interim between the harvesting of a crop and the recropping of the land the succeeding spring no person was actually upon the premises, and nothing done with them, yet, if year after year the land was thus cropped and cultivated, this would be a sufficiently continuous possession, within the meaning of the term as I have given it to you. “ So, a possession is sufficiently notorious if it is open and visible, and. the premises are actually occupied so that the people passing to and fro past the premises may see these visible evidences of occupation. This would make it notorious, among those familiar with the premises. It is distinct when it is clearly defined. “And in this case I instruct you that if the defendant in this case went into possession of these premises, described in the deed of conveyance under which he claims, that deed would define the extent of his occupancy. It would not be necessary for him to occupy each acre of the premises. If he occupied some portion of it, that would be a distinct occupancy of the whole, as defined by the deed under which he entered into possession. The claim must be hostile to the plaintiff.” ' After thus defining and explaining what kind of possession is necessary to become adverse, the circuit judge, among other things, charged the jury as contained in the following paragraphs, and to each of which counsel for the plaintiff excepted: “ 1. Adverse possession of the character which I have defined, for a period of fifteen years, gives a complete title in this State, and defeats the record title of one claiming from the government. And if the defendant has held adverse possession such as I have defined, for the period of ten years, under or through the so-called Winsor tax title, the action would be barred, and the plaintiff cannot recover in this action; and this would be true if only a portion of the Winsor title was vested in him. “2. In stating this period of occupancy, gentlemen, I mean to state, and to be understood as stating, that that period of occupancy must have been for the period of fifteen years, or ten years, respectively, prior to the eleventh day of February, 1884. That is the date of the commencement of this suit; and, of course, the adverse possession must have been sufficient prior to the date of this suit to defeat the plaintiff’s action, or he would be entitled to recover under the instructions I have given you. “3. You will observe that the sole question for you to determine in this case is whether there has ,been this adverse possession of the character which I have defined, adverse to the plaintiff, since the parties became co-tenants, as well as before, and continued for a period of fifteen years; or if you find that the defendant held under a tax title, — the Winsor tax title, so called, — whether such possession as I have defined, and so adverse to the plaintiff, has continued for a period of ten years prior to the commencement of this suit, on the eleventh day of February, 1884. If you find either of these questions in the affirmative, your verdict must be for the defendant; if you find them in the negative, both of them, your verdict must be for the plaintiff. “á. I further instruct you, if the defendant held adversely and in adverse possession of the premises, within the meaning of that term as I have defined it to you in my charge, which I will not here repeat, for ten years, under or through the so-called Winsor tax title, that the action would be barred by the plaintiff, and the plaintiff would not be entitled to recover, and that this would be true if only a portion of the Winsor title was vested in the defendant; if he went in under a tax title, and held under a tax title, and there was such an adverse possession as I have defined to you was requisite to constitute the adverse possession, and that continued ten years under that tax title, that this would vest the title in the defendant, and the plaintiff could not recover.” We see nothing objectionable in these four paragraphs of the charge. They state the law correctly as applied to the facts of this case as they appear upon the record. How. Stat. § 8698; Yelverton v. Steele, 40 Mich. 538; Hamblin v. Warner, 30 Id. 95; Perkins v. Nugent, 45 Id. 156; Sparrow v. Hovey, 44 Id. 63; Campau v. Lafferty, 43 Id. 429; Bower v. Earl, 18 Id. 367. The withdrawal of the special requests to find could work no prejudice to the plaintiff. He did not present them, or ask them to be given, and made no objection to their withdrawal. The record shows the attorney for the plaintiff was not present when the withdrawal was made, but it does not show that his absence was from any fault of the court or the defendant. Really, all the facts asked to be found were submitted in the general charge, and the case was one proper to be submitted to the jury. We have now noted all the assignments needing consideration in this opinion. We have found no error in the record. The judgment must be affirmed. The other Justices concurred. See Chamberlain v. Ahrens, 55 Mich. 112; Reilly v. Blaser, 61 Id. 399 (head-note 2). See Bird v. Stark, 33 N. W. Rep. 754, as to actual knowledge of adverse possession.

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Shubwood, J. This was an action of assumpsit brought by the plaintiff in justice’s court to recover the purchase price of a self-binding harvester. The defendant pleaded the general issue, with notice that defendant would show that the machine was warranted to him by the plaintiff, when purchased, to do first-class work, to do as good work as a machine owned by James Cochran, a brother of the defendant, who resided in the neighborhood, and to give perfect satisfaction to the defendant; that defendant was to have the privilege of trying the machine in doing his harvesting, and unless it complied with the warranty, and was satisfactory to the defendant, he was not to keep it, or be obliged to pay for it; and that the machine, when used, failed to perform as warranted, and was not satisfactory to the defendant. The defendant had judgment before the justice, and upon the trial at the circuit he again prevailed, and the plaintiff brings error. A very large number of errors are assigned upon the proceedings had .in the circuit. We shall not consider them seriatim. Eight were assigned upon rulings of the court on taking the testimony. The defendant is a farmer residing near Three Eivers, in St. Joseph county, and his brother James Cochran lived in the same neighborhood. Mr. Burrows was in the employ of the agents of the plaintiff at Three Eivers, and made sale of the machine to the defendant. He knew of James Cochran’s machine. On the trial, to prove a breach of the warranty as laid by the defendant, he was allowed to state that the machine in question did not do as good work as his brother James’. This was objected to, and the rulings upon this and several other similar statements are made the subject of plaintiffs first, second, third, and fourth assignments of error. We see no objection to these rulings. The testimony only tended to prove a breach of the warranty, as claimed by the defendant, and not positively denied by the plaintiff’s agent. The comparison called for was one that any person could make who was accustomed to the use of harvesting machines, and had seen the two work, and there was no question but that the witnesses in this case were qualified in that respect. It was not necessary that the wheat in which the machines were observed should have been of the same heft and height to make the testimony competent. Those were subjects for cross-examination, and for the consideration of the jury. On rebuttal, the plaintiff offered to show that the McCormick was a good binder, and for that purpose asked the following question: “ What do you say as to the McCormick being as good a binder as any in the market?” Objection to this question was properly sustained. The merits of the machine in question alone were material in this case. While the defendant was using the machine in question in his wheat harvest, James Me Jury saw the manner in which it worked in going around the field once. He was sworn for the plaintiff. On his direct examination he said: “lama farmer. I know something about binders. Father has one now, — the McCormick. I was in the defendant’s field once last harvest while he was harvesting. Saw the machine work. It was working well. I think it worked well.” On cross-examination the witness stated: “Arthur Cochran was driving. My attention was not called to the working of the machine particularly.” He was then asked by plaintiff’s counsel: “Did the defendant (Mr. Cochran) or his boys make any ■complaint that it was not working well?” Certainly what the boys might have said was both immaterial and hearsay ; and, so far as the question related to the defendant, it was improper examination, as it does not •appear any conversation whatever was had with him, and the most that could be claimed for it is that there was a probability, if the machine worked badly, defendant would have so •said to the witness. The witness did not represent the plaintiff at the time, and it does not appear that he made known his business in the defendant’s field, or that he was within speaking distance of the defendant, or any of his boys. We think, under these circumstances, so far as the -testimony called for related to the defendant, it was clearly subject to the objection taken. When the testimony closed, the plaintiff’s counsel asked the court to charge the jury as follows: “1. In this case, the plaintiff has shown a sale of the machine at a fixed price, and a delivery of the same to defendant, and the plaintiff is entitled to recover unless you find a breach of the warranty which accompanied this sale; and the burden of proof is on the defendant to show the breach ■of the warranty. “ 2. The plaintiff claims that the warranty was that the machine would do good work. If you find this to be the warranty, then if the machine did do good work, or would have done good work if properly managed, or could have been easily fixed so as to do good work, then the plaintiff should recover; and, if the machine did not work well, it was the duty of the defendant to notify Schoch & Griffiths, and give them an opportunity to remedy the defect, if they ■could; and, if he did not do so, the plaintiff is entitled to .recover. “3. The defendant claims the warranty to be that the machine should do as good work as his brother James’ machine, which was a Deering, with the same kind of a binder as the machine in question; and if you find the machine in question could, if properly managed, do as good work as his-brother James’ machine, then the plaintiff should recover; and it was the duty of defendant to notify plaintiff’s agent if the machine did not do good work, so that it might be remedied. “ 4. The defendant testified that he kept the machine during the entire wheat and oat harvest, and until October following, without saying a single word about not desiring to keep the machine. It was the duty of defendant to speedily notify plaintiff that he did not intend to keep the machine;. and if he used it to cut oats, and after that kept the same until October without complaint, he is guilty of laches, and has thereby waived all breaches of warranty, and plaintiff' must recover. “ 5. If you find from the evidence that the machine was-warranted to give defendant satisfaction, it should be a. reasonable satisfaction; and, if it did not work to his satisfaction, he should give reasonable notice. “ 6. If the jury find from the evidence defendant was to-have the whole of his wheat harvest to try the machine, and that he afterwards used it to cut his oats, then he must be-presumed to have accepted the machine, and your verdict, should be for the plaintiff.” The circuit judge gave the first and fifth requests, but refused to give the others except as modified in the general, charge. It was no part of the contract between the parties that we-have been able to discover from the record that, if the machine did not comply with the contract when operated, the defendant should notify the plaintiff of the fact, or return-the machine to the plaintiff. The contract seems to have-been silent upon that subject. It appears, however, that the defendant did give the plaintiff, once or twice while he was-attempting to use the machine and make it work, notice that it did not do good work, and that he was not satisfied with it; and the judge told the jury, if they found the contract to-be as defendant claimed it, this was all he was required to-do-; that he was not obliged to return the machine. We find no error in this instruction. It does no more than state the law as laid down in the elementary works and reports. 2 Add. Cont. 942; 2 Benj. Sales, § 978; Leake, Cont. 409; Anson, Cont. 286; Starr v. Torrey, 22 N. J. Law, 190; Gibson v. Vail, 53 Vt. 476; Hunt v. Wyman, 100 Mass, 198; Phelps v. Whitaker, 37 Mich. 72; Osborn v. Rawson, 47 Id. 206; Wood Reaping & Mowing Machine Co. v. Smith, 50 Id. 565; McCormick Harvesting Machine Co. v. Chesrown, 33 Minn. 32 (21 N. W. Rep. 846). Subsequent to the giving of the plaintiff’s first and fifth requests, the court charged the jury as follows: ‘‘ The defendant had a right to give the machine a fair trial under all the circumstances, and was under no obligations to return it to the plaintiff when it failed to work satisfactorily to him, unless you find he expressly agreed so to do; and the fact that he might have concluded to use the machine .through harvest, or have allowed it to remain on his farm after harvest, is not sufficient of itself to show an acceptance on his part. If the jury find from the evidence that the plaintiff’s agent knew that the machine was not working well from time to time, and agreed to put it in proper condition d„uring such time, the defendant was under no obligations to return it) or offer to return it; and the fact that he allowed it to remain on his land, and used it while it was there in this unsatisfactory condition, and while they were endeavoring to repair it, would not be considered an acceptance on his part. If you find from the evidence that the defendant, notified the plaintiff that the machine was not doing good work, then it became the duty of the plaintiff to see that the machine was made to work satisfactorily, and the defendant, was under no obligations to notify them the second time that it was not. There is no evidence that the defendant was k> notify the plaintiff that the machine did not do good work, or to notify the plaintiff that he did not intend to keep the machine. You are to say what the warranty was, and whether it was made good by the plaintiff.” The evidence appearing in the case' fully warrants the giving of these charges. The court also further charged upon the subject of the plaintiff’s requests: “If the jury find from the evidence that the plaintiff agreed to furnish the defendant a machine that would do as good work in harvest as his brother’s (James Cochran), and further find that the machine furnished would not do as good work as James Cochran’s, then their verdict should be for the defendant. If you find there has been a breach of the warranty in the machine not doing work as it was to, that it was not satisfactory to the defendant, then the fact that he used it to cut his oats did not raise the legal presumption that he had accepted the contract, and was not bound to pay for it. The simple rule would be, if he used the machine beyond the time he was to at first, he would be liable to pay for the use of the machine, as if he had taken his horse or wagon, or .anything else, and used it.” These, with some other instructions given in the general -charge, contained all that was necessary and proper to go to the jury upon the subjects included in the plaintiff’s requests. Eighteen paragraphs of the charge given voluntarily by -the court are excepted to. We find no error in any of these .paragraphs. Several of them, with great propriety, might have been omitted; but we fail to discover that any impressions would be likely to be made thereby upon the jury prejudicial to either party. The judgment must be affirmed, with costs. The other Justices concurred.

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Champlin, J. On the fourth of August, 1885, the complainant filed her bill for a divorce against the defendant, who answered, and asked the benefit of a cross-bill, and prayed for a divorce from complainant. Proofs were taken, covering over 700 printed pages, and a. decree was entered in the circuit court for the county of Houghton in complainant’s favor, dissolving the marriage between her and the defendant, and granting alimony, to be paid until further order, of the sum of $480 annually, to be paid in monthly payments, and to be secured by defendant- No relief was granted on the cross-bill. The parties to this suit were married December 2, 1884, at St. Louis, Missouri, and lived together until some time in -the following June. The defendant, John S. Morrison, was at the time of this marriage a widower, and the father of three children by his former wife, the eldest of whom was a. daughter, aged about 17. He. was in the employment of the-Calumet & Hecla Mining Company, as foreman in its blacksmith shop, at'a salary of $1,800 a year. His brother had married a sister of complainant, and resided in the vicinity-' He appears also to have been acquainted with other members, of the family. In 1873 the complainant was married to one McCall, in the province of Canada, by whom she had three children, the eldest being about 10 years of age at the time of her marriage with defendant. McCall deserted her in Canada, and came to Michigan, and stopped at Sault Ste. Marie, whither, after a time, she followed him, when he again fled, and his whereabouts became unknown to her. She visited her sister at Calumet, where defendant saw her. She applied for a divorce from McCall, and filed her bill in the circuit court for the county of Chippewa, alleging therein, as cause, desertion and failure to support. That bill was filed the seventeenth day of October, 1883. The subpoena to appear and answer was returnable November 6, 1883, and returned by the sheriff that he was unable to find defendant in his county, after diligent inquiry; but that he had been informed that he was somewhere in the State, which he believed to be true, but was unable to learn his whereabouts. Affidavit was made and filed by the solicitor for the complainant, stating that, as such, he had made diligent search and inquiry for, and as to the place of residence and whereabouts of, said McCall, and, after such search and inquiry,, he was unable to find the defendant, or his exact whereabouts ;. that his last known place of residence was in Sault Ste. Marie, Chippewa county, State of Michigan; and that, to the best of his knowledge and belief, derived from such search and inquiry, the defendant was then a resident of the State of Michigan. Upon filing this affidavit, an order of publication was granted by the circuit judge, which recited that process could not be served upon the defendant by reason of his continued absence from, or concealment within, the State, and the order required the defendant to appear and answer within three months from the date of the order. Proof of publication was duly filed, and also of tbe nonappearance of defendant, and an order was entered on February 12, 1884, taking the bill as confessed. The case proceeded to a decree, which was entered on the eighteenth day of March, 1884, granting a divorce upon the ground of desertion. This decree is assailed by the defendant in this suit as being invalid, for which reason he alleges that his subsequent marriage with complainant is also void. The invalidity consists, it is said, in the insufficiency of the affidavit upon which the order of publication was based; that it does not affirmatively and positively appear from the affidavit that the defendant was then a resident of this State ; that it only shows that his last known place of residence was at the Sault, and offers nothing to show’ his present place of residence, and contains nothing to show that the non-service was by reason of his absence from the State, nor of his concealment within it. In support of this we are cited to the cases of Torrans v. Hicks, 32 Mich. 307; Merrill v. Montgomery, 25 Id. 73; Soule v. Hough, 45 Id. 418. It is unnecessary to review these authorities. The whole subject was very fully considered in the eases of Pettiford v. Zoellner, 45 Mich. 358, and Colton v. Rupert, 60 Id. 318; and within the ruling of these cases the affidavit was sufficient to confer jurisdiction upon the court, and the decree made is unassailable in this proceeding. After these parties were married, they proceeded upon a wedding trip, and did not return to Calumet until the sixth of February, 1885, when they went to housekeeping in a house owned by the mining company, and united their two families under the same roof. They did not long remain a happy family. An antagonism soon showed itself between fhe eldest daughter of defendant and complainant. The younger children quarreled; the elder sister espoused tbe ■cause of her brother and sister, the mother, of her own chil •dren. The defendant endeavored to stand neutral, but there ds no neutral ground which can be long occupied in relations such as these. It is needless to recapitulate the troubles which, beginning on the tenth of February, continued until ■the separation, in June following. The charges of ill treatment and cruelty alleged in the bill •of complaint are supported only by the testimony of complainant, and I am satisfied that her testimony is colored by ■her feelings, and that the transactions which she narrates as having occurred when no witnesses were present are largely •overstated. There can be no question, from the testimony, that her conduct and conversation were such as justified a ■suspicion of the unsoundness of her mental condition. Her ■attending physician testified, and it is nowhere contradicted, that she was afflicted with a disease called “ hysterical mania,” which required treatment by a specialist in mental ■diseases; and efforts were made to have her go to a retreat ■at Guelph, Canada, for examination and treatment. Attempts were made by some one to burn the residence occupied by defendant and complainant, and also the barn upon the premises. Suspicion fastened upon complainant. She was •aware of it, and retained counsel to advise with her. This suspicion was entertained by the defendant, but at the time he was ■also of the opinion that, if it was she that did it, it was the result of her mental condition, and not of a criminal design to commit the offense of arson. He was advised by her family physician that she ought, at all times, to be kept under surveillance, and not be left alone, and to this end a nurse ought to be employed, not that she needed nursing, but ■as a companion; and he made efforts to comply with the advice of her physician. She and her counsel were aware of this opinion respecting her mental condition, and were consulted about her going for examination and treatment, and ■she promised to go, but declined, at the last moment, for fear that defendant designed to procure her incarceration in ■an insane asylum, whether she was insane or not. She offered, after the separation, to return and live with, defendant, if he would send his eldest daughter away. She also expressed a willingness to go off on a trip with him off three weeks’ duration, and applied to the superintendent off the mine for and obtained leave of absence for him to do so. These facts are significant as showing that she regarded her charges of cruelty against him as trivial, if such cruelty had-ever existed. The testimony shows that she had been afflicted, with hysteria before her marriage with defendant, and that, both she and defendant were advised by friends and relatives against contracting the marriage relation. They entered, into this relation knowing the character and disposition of each other, and their surroundings. His conduct cannot be regarded as altogether blameless, and was not calculated, in. all instances, to make, his wife happy and contented. No sufficient excuse is given by him for absenting himself from home until very late hours of the night. His proper place evenings, when not kept away by the demands of business, was at home, in the society of his wife and family. Where-both are to blame, neither should be granted a divorce. If incompatibility of temper were a legal cause for a divorce, a cause would be made out in this case. But it is not.. The marriage relation should not be considered as a garment, to be worn or cast aside at pleasure. The stability of the State, the welfare of society, the sanctity of the home, demand that it should not be dissolved for light and transient causes, nor unless the charges made in the bill of complaint are satisfactorily established by the .testimony, and the party applying is free from blame as to the procuring cause. With regard to the fires, the testimony does not convince my mind by whom they were set. After weighing all the testimony, the question is left as much in doubt as ever. Ifc is unnecessary, in the disposition of the case, to decide it. I think, upon the whole testimony, that the decree of the court, below should be reversed, and the bill of complaint dismissed, without costs in this Court; the defendant to pay the costs of the court below. Campbell, C. J., and Sherwood, J., concurred. Morse, J. I think the defendant is entitled to a decree of' divorce from his wife, but agree on dismissing her bill.

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Sherwood, J. The plaintiffs bring ejectment against the defendant to recover the west half of section 26, and the south half of the north-west quarter of section 23, in town 52 north, of range 30 west, situate in the county of Baraga. The title of the plaintiffs, by a chain of conveyances from the United. States down to the time of bringing suit, and the ouster of defendant, were established on the trial. The defendant seeks to defend under tax deeds given by the Auditor General upon sales made of the property for taxes for the years 1869, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879. 1880, and 1881. The cause was tried in the Baraga circuit before Hon. W. D. Williams, circuit judge, without a jury, who made a special finding as follows: “ That the defendant is guilty of unlawfully withholding the premises above mentioned, as alleged by the plaintiffs in their declaration, and that the plaintiffs are entitled to hold the same in fee;”— And gave judgment accordingly. The defendant brings error. The record is quite full, and must be regarded as containing all the evidence to be considered on the question raised. All the assignments of error are based upon rulings relating to the validity of the tax titles, and to the admission of evidence relating thereto. The finding of the court takes the place of a verdict by a jury, and, so far as questions of fact are concerned, is conclusive, if there is any evidence given tending to support it. The general finding in the case must control, unless it is based upon testimony improperly admitted; and this leads directly to the errors alleged relating to the testimony. Nine errors are assigned involving the rulings of the court in taking testimony. We have carefully examined the record, and the arguments of counsel relating to each of these assignments, and do not find any error committed by the court in any of the rulings. The other nine assignments of error raise legal questions relating solely to the validity of the tax titles offered in evidence by the defendant. These questions are not new. They have been before this Court, and nearly all passed upon, and those which have not fall within the principle of the decisions of this Court already made, and a rediscussion of the questions would not be profitable now, and certainly is entirely unnecessary to a proper decision of the case. That the several tax titles offered in evidence are clearly invalid under our previous decisions is clear, and the circuit judge did right in so holding. Cooley, Tax. (2d ed.) 339, 429, 430, 492, 517; Clute v. Barron, 2 Mich. 192; Lacey v. Davis, 4 Id. 140; Clark v. Crane, 5 Id. 154; Crittenden v. Robertson, 13 Id. 61; Farmers’ & Mechanics’ Bank v. Bronson, 14 Id. 373; Case v. Dean, 16 Id. 33; Moser v. White, 29 Id. 60; Powers’ Appeal, Id. 504; Robbins v. Barron, 33 Id. 124; Upton v. Kennedy, 36 Id. 220; Houghton Co. v. Auditor General, Id. 271; S. C. 41 Id. 30; Silsbee v. Stockle, 44 Id. 565; Thomas v. Collins, 58 Id. 64; Busch v. Nester, 62 Id. 381. We may properly say, in conclusion, the rejection of the •deeds complained of, when offered in evidence, was correct. Their invalidity appeared on the face of the instruments. How. Stat. §§ 1092, 1165, do not apply to such a case. The Legislature did not intend to say that a paper shall be held prima facie valid, when it carries upon its face the evidence that shows it void.' The record shows no error that we have been able to discover, and the judgment entered upon the finding of the circuit judge must be affirmed. The other Justices concurred. Note. — Act No. 229, Laws of 1881, amended by Act No. 7, Laws of 1882, provided for the sale of “State tax lands'” by the Auditor General at a gradually reduced price, 'measured by fixed dates, and the amended act authorized the sale of all such lands remaining unsold at the annual tax sales of 1884, which were to be conducted in the same manner, as near as may be, as sales for delinquent taxes had been by county treasurers, who were required to give to purchasers the like certificates, and with like effect, as those theretofore given to purchasers of State tax lands, and the Auditor General was required, on their presentation, to execute and deliver to the purchaser a deed conveying all the right, title, and interest of the State in and to said State tax lands, subject to taxes for 1881 and subsequent years. This amended act was approved March 13, 1882, and took immediate effect, and was passed, as was the original act, to enable the State to dispose of the immense quantity of State tax lands which had accumulated on its hands. March 14, 1882, an act revising the tax laws of the State (Act No. 9, Laws of 1882) was approved, and took immediate effect. This act provided for proceedings in the equity courts, culminating in decrees fixing the amount of the tax lien, and providing for a sale of lands charged therewith by the county treasurers on the first Monday in May, instead of October, as provided by the old law. The first sale was held May 5, 1884, under the new law, at which time the sales of State tax lands provided for by sections 4 and 5 of Act No. 7, Laws of 1882, were also held. Act No. 11, Laws of 1882, approved March 14, 1882, and ordered to take immediate effect, repealed the tax law of 1869, and various other acts affecting taxation, with a saving clause, by which the repealed acts remained in force only for the completion of all proceedings theretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder, and the conveyance of all land theretofore sold, or that might thereafter be sold, and all actions commenced and then pending, under the provisions thereof. Goodman v. Nester, post. The constitutionality of the general tax law of 1882 was questioned in the Marquette and Wayne circuit courts, and sustained in the one and denied in the other, and the Supreme Court, by an equal division, affirmed both judgments. State Tax Law Gases, 54 Mich. 350. Act 153, Laws of 1885, approved June 9 of that year, and taking immediate effect, repealed the law of 18.82, and-substantially restored the 1869 law, so far as the sale of lands delinquent for taxes was concerned. Section 68 provided for the sale, under the provisions of the new law, of all lands held by the State under bids made at the tax sales of May 5,1884, and of all lands “heretofore assessed or returned as delinquent for non-payment of taxes thereon upon which no sale has been made.” Section 118 provided that any tax deed issued pursuant to a decree made under the general tax law of 1882 should transfer to the grantee the lien of the State on the land for the consideration expressed in the deed, and converted such deed into a mortgage for such amount, with the right on the part of the grantee to foreclose it at any time within two years from June 9,1885. September 29, 1885, in the case of Thomas v. Collins, 58 Mich. 64, the Supreme Court held a sale made under the 1882 tax law, for the taxes of 1881, void, for the reason that under its title said law was entirely prospective in its operation. February 3, 1887, in the case of Nester v. Busch, post, the Court decided that the provisions of section 118 of Act No. 153, Laws of 1885, above cited, were not fairly within the title of the act, which was identical with that of the general tax law of 1882. March 1, 1*87, Act No. 17, Laws of 1887, was approved, and provided that all proceedings for the collection of unpaid taxes assessed prior to the passage of Act No. 153, Laws of 1885, and for the sale of property, might be had in accordance with its provisions, and should be as valid-as if such taxes had been assessed under the 1885 act, and also attempted to validate all sales made under said act. In the case of Davenport v. Auditor General, 38 N. W. Rep. 211, the Court held that portion of the general tax law of 1882 providing for the assessment and review of property constitutional, and that an assessment and review in the spring of 1885 for the taxes of that year, made under the 1882 law, was legal, and that the collection of taxes thereafter levied by virtue of such assessment, under the 1885 law, could be enforced under the provisions of the latter act. In Humphrey v. Auditor General, 38 N. W. Rep. 214, a bill was filed to restrain a sale for taxes assessed in 1884 under the 1882 law, based on the provisions of the 1885 act. The case was being argued the day the 1887 act took effect, and the Court dismissed the bill, and held the taxes a lien on the land, but for want of proper legislation their collection could not be enforced until the law of 1887 took effect, and that proceedings to that end must be taken de novo. November 1, 1888, in the case of Hall v. Perry, 40 N. W. 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Sherwood, J. The plaintiff in this case brought suit against the city to recover damages for injuries to his person and property received by falling through a bridge on the tweniy-seventh day of September, 1884. The plaintiff was attempting, at the time, to drive his traction engine over the bridge, which was made of iron, and spanned a mill-race, which crossed Main street, in said city, diagonally. The bridge gave way, and precipitated the engine into the race, injuring it and the plaintiff, and he now brings this suit to recover the damages sustained, basing his action upon the failure of the city to properly construct the bridge, and thereafter to keep the same in suitable repair. The cause was tried in the Shiawassee circuit, and the jury rendered a verdict for the plaintiff for the sum of $550 damages, and the defendant brings error. The bridge in question was built during the year 1878. The race over which it was constructed crosses the street at an angle of about 45 degrees. The structure was an iron truss-bridge, with four iron beams running parallel with the race, and about 10 feet apart. The floor was supported upon wooden joists two and a half or three inches thick, and eight inches wide. _ The ends of the joists rested upon iron lugs, fastened to the sides of the beams, which were about a quarter of an inch thick, extending out three inches from the beam. They were four inches wide, and placed about fifteen inches apart. The plaintiff does not complain of any defect in the plan of the bridge; neither does he claim that, if it had been properly constructed and kept in repair, it would have been dangerous; but, by reason of the improper construction, it more easily got out of repair, and that the city authorities should have used more vigilance, for that reason, in looking after its safety. „ , It was the theory of the plaintiff upon the trial that the joists had been allowed to move, from the constant jolting produced by the passage of heavily loaded vehicles over the bridge; that it so misplaced the ends of the joists upon the lugs that they were easily thrown off by the great pressure of the plaintiff’s engine when it came upon the planks; and that ordinary care required the city authorities to have fastened the joists in such manner that they could not have been thrown off the lugs by any load weighing no more than the plaintiff’s engine. Upon this theory the plaintiff’s testimony was offered. No question was made but that the bridge was built by the city, and that it was its duty to keep the same in a reasonably safe condition for public travel; neither was it contended that, when said bridge is in good repair, it is not sufficiently .strong to sustain the weight of the plaintiff’s engine. It is not claimed, either, that plaintiff did not use due care in ■driving the engine upon the bridge when the accident occurred. The bridge was about 22 feet wide, and 50 feet long. When the accident occurred, the plaintiff had driven his engine upon the east end of the bridge, and was near the west end, and a little north of the center. Twelve errors are assigned to the rulings of the court in receiving and one in rejecting testimony. We shall consider only those assignments which were brought to our attention upon the argument. The first assignment relates to testimony showing the shape and thickness of the lugs, and was competent. The manner in which the bridge was built had much to do with the vigilance required in keeping it in repair. The second assignment related exclusively to the strength of the bridge to sustain heavy loads at the time of the trial, and after the structure had been changed. This testimony was erroneously admitted. It was prejudicial to the defense. It was clearly immaterial what the condition of the bridge was three months after the accident occurred. The fourth complaint is that the plaintiff was permitted to show that he had work for the engine to perform for many days ahead when the injury to it and himself took place. We see nothing incompetent in this. It was proper for the consideration of the jury upon the question of damages. The sixth assignment relates to the condition of the bridge but a few days before the accident, when another person driving over it found the planks loose, by reason of which his horse fell through the bridge. This testimony was competent, as the bridge was not repaired before the accident occurred to the plaintiff. The proof presented to show that the joists were not put on the bridge in a proper manner is complained of in the seventh assignment of error. We think this evidence was competent. While it was not competent to show that the plan of the bridge was not the best, or as good, perhaps, as it might have been, it was proper to show that the bridge had ■been defecLively constructed, not according to the plan, and had been allowed to remain so until it had actually become ■dangerous by neglecting the necessary repairs. It was not competent to show in what manner the defend ant repaired the bridge after the injury to the plaintiff occurred, and it was error to admit testimony for that purpose. This disposes of the eighth assignment. After evidence had been offered showing the condition of the lugs where the engine went down, a witness was asked: “ How were they on the other parts of the bridge, — the other lugs? Were any of them bent?” We think this was proper. The general condition of the bridge at the time was involved in the issue, and the ninth assignment of error cannot be sustained. Neither can the-eleventh and twelfth. They both relate to the manner of the construction, or rather the placing, of the joists. What we have already said disposes of both these assignments. Witness James H. Calkins was sworn on the part of defendant, and, among others, was asked the following, question: “I wish yon would tell the jury, in your judgment, how that engine must have gone down, — by what reason?” Before this question was asked, the witness had stated that he was at the bridge in a few minutes after the engine went, down, and examined the premises thoroughly; saw the lugs,, and found several of them bent down and some of them broken; saw the ends of the joists that had laid upon the lugs, and described their appearance. His testimony shows that he-was possessed of more than ordinary knowledge and skill in. such matters, and the plaintiff’s case rested largely upon theory, and to that extent we think the testimony was competent. It may or may not have been rebutting. If not, it certainly could not have harmed the plaintiff. It should have-been admitted. Ten exceptions are taken to as many different portions of the charge and refusals to charge. The court refused to give the defendant’s first request,, which is as follows: “If the jury find that the bridge in question was reasonably •safe and fit for ordinary travel, — for the ordinary modes of travel in use at the time of its construction, — the city cannot be held liable for any injury occasioned by an unanticipated and extraordinary use of the same; such as running steam-engines over it by self-propulsion.'” The last sentence of this request goes too far. It substantially says the running of the plaintiff’s steam-engine over the bridge in the manner he did was at his own peril. Whether this was so or not depended upon the facts to be found by the jury, and which could not be passed upon by the court; otherwise the instruction would have been correct. The remaining exceptions are to the charge as given, which,, upon the important points in the case, is as follows: “ A municipality, like the city of Owosso, must know what is going on and must act through its officers and agents, and through them it may know of the existence of a defect in a highway or a bridge. And when such knowledge is gained by its officers or agents, the corporation may become liable) for negligence in not making repairs where repairs are needed. ■On the other hand, though they may not have notice and knowledge, a defect may exist and be unknown, and the corporation still be liable on the ground that the prime fault ■consists in being ignorant of the existence of the defect; for| a want of knowledge may, under given circumstances, imply, want of due care. The duty of a city is to exercise, through) its officers and its agents acting for it, a reasonable and supervisory care over its highways and its bridges, and, within reasonable limits, be watchful of their condition and safety,) and to see that they are kept in a reasonably safe condition for public travel. A corporation is not bound to extraordi-) nary care or extraordinary diligence, but only an ordinary care and ordinary diligence. It is not an insurer of safety. It does not warrant or undertake against accidents and injuries. It only undertakes that the bridge which is to be crossed is reasonably or ordinarily safe for public travel. “ This question of want of reasonable care, or negligence, must be determined by the circumstances of each case. What circumstances would be considered a want of ordinary care when applied to one bridge in one locality would not ha so considered in the case of another bridge in a different locality.' A bridge of long standing would require closer and more frequent examination than a new bridge. A bridge in a densely-populated community, upon a main thoroughfare, with daily heavy travel, would require' more vigilance in its supervision and care than would a like bridge in a thinly-settled part of a township, or in a city with only a light or occasional travel. A difference, also, in the material out of which the bridge is constructed, or on which rests the flooring of the bridge, — whether the timbers used were suitable- or otherwise, were of full length or shorter than they should be, — and the permanency of the construction, would all have to be considered by the jury in determining the question of ordinary care, or want of ordinary care. “ I charge you that if you find that the bridge was defectively maintained, in the manner mentioned, and on that account the injury occurred, and the plaintiff was without fault on his part, and the jury find farther that this defect in the bridge had remained and been in the condition complained of such a length of time that defendant should have known of it, then the plaintiff is entitled to recover. If you find, the defects complained of, — that is to say, the liability of the planks and joists to move and drop hffi their supports by the jolting of passing teams and loads, — and this rendered the bridge unsafe for travel, and might have been discovered by an examination of the position of the planks and joists, then the city could not refuse to see what others could see, and they would be chargeable with negligence for not knowing these facts; and, if the plaintiff was injured without, fault on his part, he ought to recover. [Stebbins v. Keene, 60 Mich. 214; Medina v. Perkins, 48 Id. 67-] “If,the jury find that the bridge in question was not in good repair and in a condition reasonably safe for public travel at the time of the accident, on which account the injury occurred, and the plaintiff was not in fault in going or driving his engine upon it, and the defendant ought to have-known of the unsafe condition of the bridge, then the plaintiff would be entitled to recover just damages. “Before the passage of Act 244, Laws of 1879, there was-no legal duty requiring a township, city, or village to keep in repair its highways and bridges, and no action could be maintained for an injury suffered by reason of a defect in such bridge or highway; but by the act of 1879 a duty was-created on their part to maintain in a reasonably safe condition their highways and their bridges. But this act does not impose the duty to build new bridges, nor bridges of any kind. A municipal corporation is vested with, certain legislative powers confined to the territorial limits of the city or corporation; and, when it has acted in determining the kind of bridge it will construct, the wisdom or correctness of such legislative determination cannot be considered or become a subject of review by a court or jury. Such determination is final. I therefore charge you, in this case, that the plaintiff cannot recover in this case upon the ground that the plan or method of constructing the bridge was not as good and durable as some other method or plan may have been. [Lansing v. Toolan, 37 Mich. 152; Toolan v. Lansing, 38 Id. 315; McCutcheon v. Homer, 43 Id. 486; Detroit v. Beckman, 34 Id. 125; Burford v. Grand Rapids, 53 Id. 98.] “The bridge was built in 1878, when the municipality owed no duty to the public or individuals to build bridges, and its action cannot be reviewed in this action. But the act of 1879 made it the duty of townships, villages, cities, and corporations to keep in good repair, so that they will be safe and convenient for public travel at all times, all public highways, streets, bridges, cross-wulks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel. But the statute also provides that, when an action is brought under this act, it must be shown that such township, village, city, or corporation has had reasonable time and. opportunity, after such highway, street, cross-walk, or culvert became unsafe or unfit for travel, to put the same in a proper condition for use, and has not used reasonable diligence therein. That is the language of the statute which creates the duty and gives-the right of action to the party injured, and this proviso is as important as any part of the act. “ Before the plaintiff can recover in this case, gentlemen, you must be satisfied, by a preponderance of evidence,— “ 1. That the plaintiff has sustained an injury. “ 2. That the injury was caused by the bridge being out of repair by reason of the defendant’s neglect to keep such bridge in good repair, and in a condition reasonably safe and fit for travel; and, also, that a reasonable time and opportunity, after such bridge became out of order and unsafe and unfit for travel, if you find it out of repair, had elapsed and expired, and that the defendant did not use reasonable diligence to repair and put the same in proper condition. “ This negligence urged against a township or city, and its liability, can only arise after it has had notice of the unsafe condition of the bridge, or where the want of repair or bad condition of the bridge by reasonable diligence could have been discovered, and where it continued for such a length of time that the want of knowledge on the part of the city would be regarded as negligence on its part.” [Fulton Iron & Engine Works v. Kimball, 52 Mich. 146.] We find no error in that portion of the charge last quoted, and which contains the clauses excepted to in the remaining assignments. Indeed, we think the law of 1879, as expounded by the learned circuit judge, is peculiarly applicable to the facts in this case and unexceptionable, and renders further discussion by us unnecessary. But for the minor errors noticed, which might possibly have been prejudicial to the defendant, the judgment will be reversed, and a new trial granted. The other Justices concurred. See Davis v. Jackson, 61 Mich. 538. See Stebbins v. Keene, 60 Mich. 217. See Carver v. Detroit & Saline Plank Road Co., 61 Mich. 585 (headnote 4).

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Champlin, J. Respondent was convicted of the crime of seduction. But one act was charged or claimed to have been committed, and that the prosecutrix swore was under a promise of marriage. .No attempt was made to show that she was not a woman of previous chaste character. On her direct and cross-examination she testified to the use of considerable force by respondent before he accomplished his purpose, and said she would not have consented if she could have prevented it. Her testimony given on cross-examination before the justice, signed by her, was produced and identified by her, and was introduced and read to the jury, as follows: “I did not consent to his doing that to me, and would not, only he held me so tight I could not help it. I would not have said anything about this matter, or made Peter any trouble, only I found I was in a family way. If it had not been for that, I would have let him gone where he liked.” The counsel for defendant requested the circuit judge, in writing, to charge and instruct the jury as follows: “1. If the jury find from the evidence that there was any other inducement or motive which induced or led the prosecutrix to submit herself to the defendant, except the promise of marriage, then the jury cannot convict the defendant of seduction. “2. To convict the defendant of seduction, the jury must find two facts, viz.: (1) That the prosecutrix consented to the ac. of copulation with the defendant freely and willingly; (2) that she was induced to thus consent by reason of a promise of marriage made by defendant prior to the act of connection. “3. If you find from the evidence that she submitted to the act of connection unwillingly, or through force or fear ■of defendant, the jury cannot convict the defendant of seduction. “4. If the jury find from the evidence, that the prosecutrix submitted herself to the defendant partly because of a promise of marriage, and partly through force or fear of •defendant, then the jury cannot convict the defendant of seduction. “5. The jury must find from the evidence, before they can convict the defendant of seduction, that there was a promise of marriage between the defendant and prosecutrix, made prior to the act of connection, and that said promise was understood and relied upon by her, and that she yielded to the act with defendant because of said promise, and did so freely and with full consent. “ 6. If the jury find from the evidence that the prosecutrix would not have submitted herself to have connection with •defendant on the sixteenth day of November, 1884, without the force used by defendant, as testified to by her, then the jury cannot conviet the defendant of seduction. “ 7. If the jury find from the evidence that the act was done against the will and wishes of the prosecutrix, then the jury cannot convict. “8. In order to convict the defendant of seduction, the jury must find from the evidence a promise of marriage made by the defendant to the prosecutrix, and in consideration of such promise she freely and willingly consented to have connection. “ 9. If the prosecutrix was compelled by force or fear of defendant, in whole or in part, to submit to the act of connection, then the act would not be seduction, and the jury cannot conviet.” The circuit judge declined to so instruct the jury, and on his own motion charged and instructed them as follows: “ Gentlemen of tbe Jury: This action is brought by the people against the defendant under the provisions of the statute which provides for the punishment of any man who .shall seduce or debauch an unmarried woman. In this case the defendant is charged with having seduced and debauched the complaining witness, Nettie Josephack, on the sixteenth •day of November, 1884, in the township of Jordan, in this county. The testimony on which the people rest is the testimony of the complaining witness. Her testimony stands before you uncontradicted by any other witness in the case. You.therefore have no conflict of testimony to reconcile, ■except it be conflicting statements of tbe complaining witness. The fact that the complaining witness and the defendant had sexual intercourse on that day, in that township, is not disputed; and you may take that fact as established in ■examining this case. The question for you to determine, then, is, what were the inducements that led to this sexual intercourse F They may be, or they may have been, occasioned in three ways: “ 1. It may have been from the mutual desire of the parties, without undue influence of either, to gratify their passions. In that case, if you should And such was the case, then your verdict will be, ‘Not guilty.’ “ 2. It may K&ve been by the seductive influence of the •defendant. But the complaining witness has testified to no acts in that line except the promise of marriage. Therefore, in order to convict this defendant of the ofEense here charged, under tbe testimony before you, you will have to find that the inducement which led to her submitting her person to the carnal intercourse of the defendant was the fact that he, for that reason, promised to marry her. If you find that that was the reason of her submitting to his embrace, then your verdict will be, ‘ Guilty.’ “3. If you should find from the testimony in the case that she gave no consent whatever; that the intercourse was obtained by force and compulsion, — such an obtaining of carnal intercourse with a woman is rape, and it is a higher crime than the one you are brought here to consider. It would be against public policy to allow a prosecuting officer to bring a •charge of seduction where the crime was rape, because, if the law allowed him to do so, he might allow parties to escape with a light punishment where State’s prison for a long term of years was the punishment that should be meted out for that offense. “ The crime of rape consists of, or is defined by Bouvier to be: ‘A carnal knowledge of a woman by a man, forcibly and unlawfully, against her will.’ Therefore, to find that this man committed a rape on this woman, you will have to find that he committed that ‘forcibly and unlawfully, and against her will.’ If she consented to the connection, it was not rape. “ Therefore, gentlemen, I think that you will, in this case, have but two matters to consider. I think you may dispense with any theory that this defendant committed the higher •crime of rape under the testimony in the case, and you will be left simply to determine whether it was by the mutual consent of the parties^ resulting from long acquaintance, and the very intimate relation that existed between them, upon a contract of marriage before entered into, or whether it was upon a promise at that time of a future marriage on condition that she would submit to his embraces. If you find the former, he is not guilty; if you find the latter, your verdict will be, ‘ Guilty.’ ” The errors assigned upon this record are the following: “ 1. The court erred in refusing to grant the requests submitted by defendant’s counsel, and in refusing to instruct the jury as stated in said several requests; that the refusal of each and every one of said defendant’s requests was error. The charge of the court, on his own motion, as a whole, was error. “3. The court erred in that part and portion of his charge where he charges the jury in relation to the crime of rape, because the same is contrary to law, and in this case misleading to the jury, and contrary to the evidence. “ 4. The court erred in taking from the jury in his charge the consideration of the question of rape. “ 5. The court erred in his charge wherein he instructs the jury as follows: ‘ I think you may dispense with any theory that this defendant committed the higher crime of rape.’ “ 6. The court erred in submitting the case to the consideration of the jury under the testimony in the case, as the evidence is not sufficient to support the verdict.” It is claimed that the assignment of error based upon the refusal to give the nine requests to charge is too general to be considered, and particularly as some of such requests were given and others were improper. The object of assignments of error is to point out specifically what is relied upon as error. This is accomplished by the first assignment, which in terms assigns error upon the refusal to give each and every one of defendant’s requests. This applies to each request separately, and no good reason is perceived for repeating each request in the assignments, which would only tend to prolong the record without lending any perspicuity to the • errors assigned. The second assignment of error is too general, and cannot be considered. The first request to charge was properly refused in the form in which it was asked. The testimony showed no other inducement or motive than a promise of marriage, except it might be the mutual desire of the parties; and this the court called the jury’s attention to, and told them, if they found that the act was done by the mutual consent of the parties to gratify their passions, the respondent was not guilty. The second request was covered substantially by the charge as given, as was also the eighth. The third and sixth requests were properly refused. The respondent was on trial for the offense created by the statute of seducing and debauching an unmarried female. Under this statute, the offense is committed if the man has carnal intercourse to which the woman assented, if such assent was obtained by a promise of marriage made by the man at the time, and to which, without such promise, she would not have yielded. People v. Millspaugh, 11 Mich. 278, 282, 283. The offense consists in enticing the woman from the path of virtue, and obtaining her consent to the illicit intercourse by promises made at the time. The evidence should be such as to satisfy the jury beyond a reasonable doubt upon these points. The promise and yielding her virtue in consequence thereof is the gist of the offense. If she resists, but finally assents or yields, induced thereto or in reliance upon the promise made, the offense is committed. Boyce v. People, 55 N. Y. 644. An act of intercourse induced simply by mutual desire of the parties to gratify a lustful passion would not constitute the crime charged in the information. The charge of seduction and debauchery implies that a pure woman will resist, and that the natural sentiment of virtue and of purity will be overcome by promise of marriage and other means, and submission to his desires finally obtained through such inducements. And it has been held that, when the female submitted through a promise of marriage conditioned upon the act resulting in pregnancy, the crime was committed. People v. Hustis, 32 Hun, 58; Kenyon v. People, 26 N. Y. 203. The requests last referred to leave out of consideration the concurrent influence of the promise of marriage as a pro-ducing cause of yielding assent, or, to use the language of the -request, in submitting to the act. The fourth and ninth requests were properly refused. The •crime of rape is not embraced in that of seduction; and it would be improper for the judge, upon a trial for seduction, to instruct the jury upon the law relative to the crime of •rape. Reynolds v. People, 41 How. Pr. 179. The judge, however, should charge that, if the jury should find that she did not assent to the act of intercourse, the offense was not committed. The respondent was entitled to -have his seventh request given. This request is not covered by the charge of the court, which was finally reduced to two 'propositions; namely, whether the act was done by the mutual consent of the parties, or whether it was upon a promise at that time of a future marriage on condition that ■she would submit to his embraces. He withdrew from the jury whether she gave no consent whatever, and the intercourse was obtained by force and compulsion. For this error assigned, the conviction must be set aside, and a new trial •ordered. It may be well, as there must be a retrial, to point out one ■ or two errors in the charge not specifically assigned as error. The attention of the jury was called to the fact that the people rested their testimony upon the testimony of the com■plaining witness, and that her testimony stood before them ■uncontradicted by any other witness in the case. He also told the jury that the fact that the complaining witness and the defendant had sexual intercourse on that day, in that ■township, was not disputed; and the jury might take that fact as established in examining the case. This was erroneous. 'The weight of the evidence, and the credit to be given to the testimony of the complaining witness, was a question exclusively for the jury, and it was error for the court to charge the jury that they should consider any facts testified to-by her as established simply because she had testified to them, and had not been contradicted. These facts which he directed the jury to regard as established were a part of the res gestee. The law presumed the respondent innocent of the crime charged until such presumption was rebutted and overcome by evidence; and the jury must weigh this presumption against her testimony, and ascertain what the facts are. Her testimony may have been of such a character or so contradictory as not to obtain any credit with the jury. Indeed, the judge told the jury that they had no conflict of testimony to reconcile except it was the conflicting statements of the complaining witness. Another error in'the charge appears. It is the duty of the trial judge, in a criminal case, to instruct the jury in reference to the presumptions of law applicable to the case before them, distinguishing those which are conclusive from those-which are disputable. The presumption of innocence is present in every criminal case; and he should instruct the jury to that effect, and that it stands good until overcome by evidence which convinces the jury beyond a reasonable doubt that the respondent is guilty. The charge of the court entirely- overlooks this presumption, and nothing was said upon the subject. Let an order be entered reversing the judgment, and granting respondent a new trial. The other Justices concurred.

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Morse, J. Action of ejectment for the possession of the undivided one-fifth share of 80 acres of land in Clarendon, Calhoun county. William J. Gatchell, the father of the plaintiff, died November 9, 1865, the owner in fee of this and other lands in the said township of Clarendon. He left surviving him his widow, Annie Gatchell, and five minor children. In his will, which was duly probated and allowed, he .bequeathed to his wife “four thousand dollars during her natural life, to be paid out of my estate, and after her death to be equally divided among my heirs.” He also directed the payment to his mother of $52 annually. He then devised 80 acres of land (no part of the land in controversy here) to three of his children, and the remainder of his estate he divided equally among his five children. It is under this clause of the will that plaintiff claims. One Benjamin Freddenburg was named as executor, and duly qualified as such December 18, 1865. The defendant claims under an executor’s sale of the land in question. The circuit judge filed his finding of facts and law, and rendered judgment in favor of the defendant. From these findings it appears that November 16, 1870, said executor filed a petition for license to sell real estate. Said petition alleged that the personal estate of the testator was practically exhausted, and that there remainded due and outstanding against said estate the sum of $800, debts of the testator, and about $500, estimated expense of administration, and that it was necessary to raise the sum of $1,200 from the sale of real estate; and prayed that the executor might be allowed to sell all the real estate, amounting in value, as alleged therein, to $8,800. December 31, 1870, a hearing was had upon said petition, upon proper notice by publication. The judge of probate adjudged that the debts and valid claims against said estate amounted to $800; that the personal property was insufficient to pay the same; and that it was for the interest of all interested in the real estate that it should all be sold. The license to sell was granted, and it was ordered that the executor take ■and subscribe the oath required by law before sale, but was ■silent respecting the filing of a bond, the printed provision for said bond being erased. The executor made sale on the eighteenth of February, 1871, of 220 acres, including the 80 in question, to George Born, for the sum of $8,800. Publication and posting notices ■of this sale were made as required by law. The oath on file was dated December 31,1871, and purported to be filed December 31, 187 — , the place for the fourth figure of the year being blank. The report of sale, filed June 29, 1871, shows that the oath was subscribed and taken before sale, such statement being in the printed portion of the blank used in making said report. June 29, 1871, the sale was confirmed, and on the same day .a deed was acknowledged by Freddenburg to George Born; the deed being dated February 18, 1871, and conveying the 220 acres of land. November 21, 1871, George Born and wife, by warranty ■deed, in consideration of $500, conveyed the land in controversy to the defendant, who at once went into possession of the same, and has ever since held the same, to the exclusion ■of plaintiff. Plaintiff was born October 10, 1861. Previous to the commencement of this suit she demanded of defendant that she be let into the possession of the undivided one-fifth of said ■premises, and such possession was refused by him. November 14, 1878, the final account of the executor was ■ examined and adjudicated by the probate court. An order ■of distribution was made, whereby the guardian of plaintiff and her brother was awarded the sum of $2,564.28, as their •share of said estate. The order recites'that all the heirs and parties interested in said estate were present, and consented to said order. The $8,800 received on the sale of said lands were credited to said estate, and formed a part of the amount in the executor’s hands at the time the order of distribution was made. The widow and children resided on the premises in question until September, 1869, when the widow remarried, and moved out of the State. The plaintiff and other minor children went with her. The probate court appointed commissioners on claims. They reported August 31, 1866, and allowed claims to the amount of $1,300. No evidence was given upon the trial of any other debt or debts filed or claimed against the estate, and the reports and accounts of the executor, made and filed before and after the sale, show the payment of no other debts by him than those allowed by the commissioners. • March 29, 1869, the executor reported under oath that all of said claims so allowed were paid, which report is recorded in the probate office. Soon after the executor received his said trust, he rented the premises to defendant, who entered upon them. In 1870, Born and defendant, both brothers-in-law of the executor, promised him that they would bid $40 per acre for the 220 acres at the sale. The land was appraised in the inventory at $8,800. No. bond was given on the executor’s sale. The probate proceedings upon such sale are made a part of the findings, and from them it appears that all the papers except the oath are properly dated. The notices of sale speak of it as an “administrator’s sale,” and were signed, “Benjamin Freddenburg, Administrator.” The deed is executed by said Freddenburg as administrator, and he so describes himself in said instrument. The said executor has not yet been discharged from his trust. His account shows that, after said sale, he paid the interest upon the legacy of $4,000 to the widow each year, and at the time of his accounting, in 1878, he held the said principal sum in trust for her. The counsel for appellant, in the oral argument, and in his brief filed in this Court, attacks the sale, and claims the same to be void— 1. Because the petition gave the court no jurisdiction to license the sale. 2. The license is void because the probate court found $800 •of subsisting debts against the estate, when in fact there were no debts. 3. Because on the face of the petition and license more land is asked and authorized to be sold than was necessary to pay the debts as fixed by the court. 4. For the reason that no oath was taken and filed before sale. 5. Because Born and Olney were not purchasers in good faith. 6. Because the sale was in fraud of the rights of the devisees. 7. Because no bond was given on the sale. 8. Because he did not sell or deed as executor, but as administrator. We will examine the alleged defects in their order. It is contended that the petition shows upon its face a sufficiency of personal property to pay the expenses of administration ; that it asks for more land to be sold than was necessary to pay the alleged debt of $800, and the expenses of administration; that the records of the probate court show the falsity of the statement in said petition that there is a •debt to that amount; that the statute of limitations had attached, and discharged the lands from all liens of debt, and liability of sale therefor; and also that the petition asks for the sale of devised lands, and more than was necessary to pay the alleged debts, and “ with a view to the distribution of the •avails thereof.” The petition shows upon its face that there is not personal property enough to pay the alleged debts, and we cannot inquire into the truth or falsity of the averments of the peti tion, or interfere with the adjudication of the judge of probate thereon. Palmer v. Oakley, 2 Doug. (Mich.) 433; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Id. 506; Woods v. Monroe, 17 Id. 238; Osman v. Traphagen, 23 Id. 80; Griffin v. Johnson, 37 Id. 90; Toll v. Wright, Id. 93. It is contended that it was not necessary to sell all the lands to pay debts and charges of administration, and it so appears from the petition, which estimates these debts and charges at §1,300, and asks for the sale of real estate valued at the sum of §8,800. It is claimed that there is no statute authorizing the sale of testate lands for the purposes of distribution. Section 6050 of Howell’s Statutes (section 4570, Comp. Laws 1871) provides, in substance, that the real estate of a testator may be sold, if personal estate is insufficient, to pay any legacy, or the debts and charges of administration, and that the real estate of an intestate may, in the discretion of the court, be sold for purposes of distribution. The petition in this case contained the following statement : “ And your petitioner further says that, in petitioning to sell all the real estate of said deceased, he does it with a view to the distribution of the balance over and aboye the amount necessary to pay the debts. ” The prayer is, however, confined to leave to sell to pay ■debts and charges of administration. We do not think the petition was void because of this statement. The petition was substantially in compliance with the statute, and, without this statement, only prayed for a sale authorized by the statute. But the license granted by the probate court authorized the sale of the whole 220 acres, and it was all sold to one purchaser, under such license, “for the purpose of paying debts, ■claims, interest, and charges,” and contains the following recital: “ And, it appearing to the court that it would be for the interest of all persons interested in said estate to have all the same sold,” therefore the sale is ordered, etc. It is argued that the order for the sale of all the lands was-made for purposes of distribution, and under the clause of section 6050, How. Stat., referring to the lands of intestates, and that the court had no jurisdiction to make such order in this case. It appears, however, that the $4,000' legacy to the widow had not been paid at the time of this sale, and was subsequently paid or held in trust out of the proceeds of such sale. The lands sold were, by the terms of Gatchell’s will, burdened with the payment of this legacy, if there was not sufficient personal property to pay it. At the time of the granting of this license a statute existed-(section 4551, Comp. Laws 1871, being section 6031, How. Stat.) authorizing the probate court, when it was necessary to sell part of the real estate, and by such sale the residue would be greatly injured, to order a sale of the whole estate. It is plain from the record in this case that it was necessary to sell this real estate, not only to pay the alleged debts and charges of administration, but this widow’s legacy as well, and that it was for the interest of all concerned that the whole estate be sold together. The legacy was paid out of the avails of the sale, and the balance accounted for and held for distribution by the executor ; and the final order upon the accounting shows that all the parties interested were present in person or by guardian,, and consented that the order of distribution be made, based upon such accounting, without any further notice. Under-these circumstances we shall hold that the license was a valid order, and, in effect, an order to sell the whole of the premises, to pay legacies, debts, and charges of administration, and that, under the statute above cited, it will be considered that the sale of the whole was justified, “ and most for the interest of all concerned.” We shall not avoid the sale for a mere technicality of expression, or a want of it, in the petition or license, when the ends really worked out and subserved by the action of the probate court come clearly within the statutes. How. Stat. §§ 6031, 6036. By our statutes the sale of any real estate by an executor, in an action by an heir or any other person claiming under the deceased, contesting the same, shall not be avoided on account of any irregularity in the proceedings, provided it shall appear— 1. That the executor was licensed to make the sale by a probate court having competent jurisdiction. • 2. That he gave a bond approved by the judge of probate, in case a bond was required upon granting a license. 3. That he took the oath prescribed by law before sale. 4. That he gave notice of the time and place of sale, as required by the statute. 5. That the premises were sold accordingly, and the sale confirmed by the probate court, and that they are held by one who purchased them in good faith. How. Stat. § 6076; Comp. Laws 1871, § 4596. We find the petition sufficient to confer jurisdiction upon the court, and also that such court did not exceed its jurisdiction in the license granted. Dexter v. Cranston, 41 Mich. 448; Blanchard v. DeGraff, 60 Mich. 107. We also find that the court had not lost jurisdiction by the lapse of time. Pratt v. Houghtaling, 45 Mich. 457; Church v. Holcomb, Id. 29; Larzelere v. Starkweather, 38 Id. 96. We cannot examine, in a collateral issue like the present, the finding of the probate court as to the existence of debts against the estate, or the amount of them. This objection has been disposed of in our discussion of the first point raised. It would naturally 1)6 suggested to the mind of any one, by the examination of the proceedings before and after sale, as shown by the files and records of the probate court, that the date of the oath, December 31,1871, was a clerical error, and that its real date was December 31, 1870. Testimony to this effect was admitted, and the court found that it was taken and subscribed of this date. Objection was made to the reception of the oral proof to establish this fact. We have no doubt of its competency. There was absolutely no evidence tending to show that Born and the defendant were not purchasers in good faith. On the contrary, they paid for the land all that it was considered to be worth, and the only thing urged against the lona fules of the transaction on their part is the fact that they agreed to bid $40 per acre if the executor would obtain license from the court to sell it. The sale, however, was properly -noticed according to law, and such agreements to bid are ■often secured before sale by executors and others at judicial sales. Such an agreement could not and did not interfere with others bidding higher if they so desired. We do not think the sale was in fraud of the rights of the devisees, nor that the testator intended, as claimed by the counsel for appellant, that these premises should pass to his children, and not be sold. By the terms of his will, and the condition and amount of his estate, his will, in which the first provision was the legacy to his wife, could not be carried out without such sale. The widow’s legacy could not be paid without resort to this real estate. This objection seems to me to be the most meritorious of any. How. Stat. § 6032 (Comp. Laws 1871, § 4552), provides: “ When the executor or administrator is authorized to sell more than is necessary for the payment of debts, he shall, before the sale, give bond to the judge of probate, with sufficient sureties, to account for all the proceeds of the sale that shall remain after payment of the debts and charges, and to dispose of the same according to law; and, in all cases where license is granted for the sale of real estate, the judge of probate may require a further bond from the executor or administrator when he shad deem it necessary.” In this ease the judge of probate, in his order granting the license, saw fit to require no bond, and struck out the printed provision for one usually found in the printed blanks for such orders. No bond was given. The counsel for plaintiff argues with much force that, it being admitted in this case that more lands were sold than were necessary for the payment of the debts and legacies, the bond should have been required by the judge of probate, and given by the executor, in order to confer upon him authority to sell; that the provision requiring such bond is plainly mandatory, and cannot be disregarded by the probate court; that the want of such bond goes to the jurisdiction, and is not a mere irregularity. But the statute (How. Stat. § 6076) does not provide that the bond must be given as required, by the statute. The second paragraph of that section reads as follows: “ That he gave a bond, which was approved by the judge of probate, in ease a bond was required upon granting a license.” It was intimated by this Court, in Drake v. Kinsell, 38 Mich., at pages 236 and 237, that this statute, in speaking of the bond as being “ required,” intended a requirement of the judge of probate when granting the license; and that, if none was directed by him to be given, the failure to give one cannot be a fatal defect. The point was not adjudicated, however, as it was not deemed necessary in that ease. In my opinion, this interpretation of the statute is the one most consonant with justice and authority. The neglect of the probate court to require a bond should not be allowed to affect the rights of an innocent purchaser under an executor’s sale in a collateral suit, after such sale has been duly confirmed by the probate court. The statute (section 6076, How. Stat.) was evidently framed for the purpose of protecting sales of this kind, as far as' possible, where the sale of the premises had been confirmed, and the lands are held by persons purchasing at such sale in good faith. It must be considered that the most liberal construction of the language, in favor of such purchaser, and against the heir, was intended. See Palmer v. Oakley, 2 Doug. (Mich.) 433, 495; Perkins v. Fairfield, 11 Mass. 226; Stall’s Lessee v. Macalester, 9 Ohio, 19; Ludlow’s Heirs v. Johnson, 3 Id. 553. The fact that Freddenburg deeded as administrator, instead of as executor, is a mere irregularity, which cannot affect defendant’s title. In this case the sale was, in all its proceedings, conducted in a fair and just manner by the executor. The premises were sold for a fair price, and every dollar accounted for by the executor. There can be no fault found with his management of the estate, or the execution of the trust. No one has been defrauded or injured in the least by this sale, or the disposition of its proceeds. It is sought, upon technicalities alone, to avoid the sale, and wrest from the purchaser one-fifth of the lands which he has held, occupied, and improved under the sale for over 12 years before the commencement of this suit. There is no merit in plaintiff’s claim, and courts should not favor the disturbing or destructon of titles obtained at executors’ or administrators’ sales upon mere technicalities, or the omission of acts, when such omission has caused no injury. The judgment of the court below is affirmed, with costs. Campbell, C. J., and Champlin, J., concurred. Sherwood, J., did not sit. See Blanchard v. DeGraff, 60 Mich. 107; Goodall v. Henkel, Id. 383.

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Morse, J. The respondent was tried and convicted in the recorder’s court of the city of Detroit of burglary. On the night of the twenty-sixth of April, 1886, about 3 o’clock in the morning, the house of John B. Moloney, in the city of Detroit, was broken into and entered, and several articles stolen therefrom, among them a gold watch and chain. The evidence against the respondent tended to show him in company with Thomas Powers that evening and early next morning, and with him at one place where Powers attempted to dispose of the watch stolen from Moloney’s residence, and also at one Rosenberg’s, where Powers sold the watch. George Marrow testified that he met Powers and Dow on Woodward avenue, and went to a saloon, where Powers asked him to buy a couple of tickets to Rochester, New York, in the presence of Dow, and said that he did not want to go down town because he was afraid he would be arrested; that he had been arrested in Detroit once before, and was afraid lie would be arrested again as a suspicious character, but they •couldn’t do anything with him but hold him for a couple of •days, and he wanted to buy the tickets for that week. Both the respondents gave him money, $15 in all, and Marrow took it, and went and purchased the tickets. Met Powers and Dow at a saloon afterwards, where arrangement had been made to meet, and gave them the tickets. This testimony as to what Powers said was objected to as incompetent as against Dow, who was having a separate trial. The evidence was competent. The occurrence was soon after ■the burglary, and Dow seems to have been equally interested with Powers in the purchase of these tickets, and the use of them. He was arrested at Rochester. The conversation was in his presence and hearing, and therefore admissible. The main objection and exception relates to the admission in evidence of the official record of the weather, as kept in •the office of N. B. Conger, signal officer in charge of the signal service station at Detroit. Mr. Conger was offered as a witness, and testified that he kept a record of the weather in his office, and had the official record with him. He was then asked to state the condition •of the weather on the evening of April 26, referring to such record. It was objected to as incompetent. Objection overruled. He then testified it was not in his handwriting, but was taken under his supervision. The fact of the record not being in the handwriting of the witness was then made the basis of another objection to its reception in evidence. The •court, after some hesitation, allowed the record to be put in evidence. On cross-examination it appeared that the witness left the signal office at 6 o’clock in the evening, and did not return until the next morning. When he went away, he left his assistant, Mr. Baldwin, in charge of the office. Did not know of his own knowledge that Baldwin or the other assistant remained in the office all night, but supposed one of them did. According to this record, the night of the twenty-sixth rain commenced by meridian time at 7:10 p. m., and ended at 9:30 p. m., and then commenced again at 9:51 p. ar., and stopped at 11:45 p. ar. On the twenty-seventh, beginning at. 7 a. i., the weather was clear. No observations were taken after 11:45 p. ar. This evidence was introduced in rebuttal of the evidence in regard to rain by the witnesses for the defense, whose testimony tended to show an alibi. The following questions were put to Conger on cross-examination: “ Q. Can you swear, of your own knowledge, that your-assistants took these observations on the night in question? “A. Yes, sir. “ Q. Of your own knowledge? “A. Yes, sir; I didn’t see them, of course. The observations are in their handwriting here in this original record.”' The counsel for the respondent argues that this record, not being made by the witness himself, and the persons who¡ made it not being sworn, and there being no certainty that they went outside of the office-and took the observations recorded by them, is not admissible in a criminal cause. He contends that the admission of such record is in violation of' the constitutional provision that the accused shall have the - right to be confronted with the witnesses against him. We-have heretofore held that this provision does not apply to the-proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a>. copy officially certified. People v. Jones, 24 Mich. 225. But. that is not this case. This Court has also held that market. reports, and the records of the weather as kept at the asylum, at Kalamazoo, were properly admitted in civil cases. Sisson v. Cleveland & T. R. R. Co., 14 Mich. 489, 497; De Armond v. Neasmith, 32 Id. 231, 233; Cleveland & T. R. R. Co. v. Perkins, 17 Id. 296. The record of the weather in this case was not one made-by the witness, or one that he knew certainly to have been accurately made in accordance with the actual state of, the-i weather. It seems to me that the presumption in favor of the correctness of this record, because it is an official one, if such presumption can be said to exist under the circumstances shown as to the manner of the observations being taken and the record being kept, cannot be used against the respondent in a criminal case. It was a vital question upon the trial whether the testimony looking towards an alibi was true or not, and the condition of the weather that evening was important in aiding the jury in their determination of that question. If Conger had made the record himself, or taken the observations himself, the evidence would have been competent; but the respondent was entitled to have the testimony of Baldwin, or the assistant who took the observations and made the record of the same, and to be confronted with such witness. As it was, the presumption arising from its being an official record only saved it from being hearsay testimony. This official statement or record of the weather, though required to be kept, and therefore an official document, is not, however, a record of facts which can only be proved by the original, or a properly certified copy. The facts therein stated are facts open to the observation of anybody, and capable of being established satisfactorily by oral testimony, or minutes kept by a private person, if such minutes refresh his recollection. The record ought not to have been introduced in evidence without the presence of the man who made the observations and the record, on the stand, so that the accuracy of such Tecord could have been inquired into. For this error the judgment must be reversed, and a new trial granted. The other Justices concurred.

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Campbell, O. J. Goldsmith brought into the circuit court for the county of Oceana a justice’s judgment, which-was affirmed. He brings error on the affirmance. The suit was commenced by attachment, which seems to have been regular, but not personally served. On the return-day plaintiff appeared by attorney, and, defendant not appearing, the case was adjourned for 30 days. In the meantime a motion was made before a circuit court commissioner to dissolve the attachment under the statute, and he made an order dissolving it, from which Churchill appealed. Pending this appeal, the case came on at the adjourned day before the justice, and he gave judgment for plaintiff. As the statute positively requires an adjournment when the defendant is not personally served and does not appear, we do not think it of any importance in what way the plaintiff appeared on the return-day. On the adjourned day we must assume from the docket that the appearance of plaintiff was ■ regular. If so, the only question left is whether the pendency of proceedings for dissolution had any effect on the action before the justice. We can find nothing in the statute which provides for any such interference with the main suit. Where there is no per- ■ sonal service, the attachment judgment can only bind the property, and, if the attachment should be ultimately dissolved, of course the judgment must fall with it. But these proceedings may easily last long enough to oust a justice of' jurisdiction, and might therefore be resorted to for delay, to the detriment of right, if they suspended the main action. Th e statute does not provide for any such suspension, and the main issue, on the merits, would not be affected by anything which would be litigated on the motion to dissolve. There is no provision which compels or authorizes the justice to take notice of these collateral proceedings, until brought before him in some responsible shape, and this was not done in the present case. But, had it been, they would not have barred his action. "We see no error in the record, and the judgment must be affirmed. The other J ustices concurred. The docket shows plaintiff’s appearance on the return-day by his • attorney, but contains no statement that the attorney swore to his • authority to so appear. The docket entry is as follows : “ June 30, 1886, 10 o’clock A. M. Cause called, and plaintiff appeared, and defendant did.not appear and after a delay of one hour I did thereupon proceed to hear and. try said cause.”

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Champlin, J. The bill of complaint in this cause was filed by Chauncey Curtiss, since deceased, in which he stated that on and prior to January 19, 1884, he was seized and possessed in his own right, in fee simple, of lands situated in the county of Kent and State of Michigan, described as follows: Lots 1 and 2 of block 1 of Canton Smith's addition to the city of Grand Kapids, also the south-east quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, township 8 north, rangell west, excepting 20 acres off from the north end of said west half of the north-east quarter. That on said nineteenth day of January, 1884, he agreed to sell to Sarah Outhouse, upon the terms and conditions hereinafter expressed, the aforesaid lands and premises for the purchase price of $4,637.50, and she, in consideration thereof, agreed to make, execute, and deliver, immediately upon the delivery of the deed by him to her, a mortgage upon the aforesaid premises, except lots 1 and 2, to secure to him the payment of the aforesaid purchase money, and pay the same, and in pursuance thereof he did, by deed bearing date the nineteenth day of January, 1884, duly executed and delivered to said Sarah Outhouse, convey said premises to her, and thereafter, on the twenty-ninth day of September, 1884, she caused the deed to be recorded in the office of the register of deeds of Kent county, in Liber 157 of Deeds, at page 437. That she has not, nor any one in her behalf, paid him the said sum of $4,637.50, the purchase price of the premises, nor any part thereof, and the same remains due and unpaid, and that she has, at all times since the execution of'said deed by him, refused and neglected, and still refuses and neglects, to pay him the purchase money aforesaid, and still refuses to execute and deliver to him a mortgage upon said lands as security for the payment of the purchase price in pursuance of her said agreement so to do. That he is advised that the purchase price is a legal and equitable lien upon the aforesaid premises; and avers that, since the execution and delivery of the deed, the defendant Sarah Outhouse has, in fraud of his rights, executed a mortgage upon the said premises to one William Scott, as security for the payment of the sum of $1,000. The bill prays that the purchase money, $4,637.50, may be declared a lien on said lands in favor of the complainant, namely, upon lots 1 and 2 of block 1 of Canton Smith’s addition to the city of Grand Rapids, also the southeast quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, township 8 north, range 11 west, excepting 20 acres off from the north end of said west half of the north-east quarter of section 11, to secure the payment of the purchase money and interest; and that Sarah Outhouse be decreed to pay complainant $4,637.50, with interest from January 19, 1884, on a near day to be fixed by the court, and,'in default thereof, she, and all persons claiming under her by conveyance or otherwise; be barred and foreclosed of and from all equity of redemption, and fora sale of the premises to satisfy the amount found due; and that she be decreed to pay the balance or deficiency, if any exists, on such sale. The defendants answered separately, the defendant Scott by plea claiming to be an innocent mortgagee in good faith; and this fact was admitted by the record, and a decree entered in his favor for costs. The defendant Sarah Outhouse admits that complainant was the owner in fee simple, and was seized and possessed of his own right, of the lands and premises described in the bill of complaint; denies that on the nineteenth of January, 1884, or at any other time, upon the agreements or condi tions expressed in the bill of complaint, he agreed to sell to her the said lands for the purchase price of $4,637.50; and denies that she then and there, or at any other time, agreed to make, execute, and deliver, immediately upon the execution and delivery of the deed, or at any other time, a mortgage upon said lands, except lots 1 and 2 aforesaid; denies that she ever in any manner agreed to pay the same, or any part thereof; admits the execution and delivery of the deed to her, and the recording thereof, but denies that complainant conveyed said premises to her in pursuance of the alleged agreement set forth in the bill of complaint, and denies that complainant has á legal or equitable lien upon the premises for the alleged purchase price. She admits the mortgage to Scott, but denies that it covers lots 1 and 2, and denies that it was executed in fraud of complainant’s rights. She then sets out that said Chauncey Curtiss is her father and in the eighty-ninth year of his age; that the deed to her by him was made partly as a gift, and partly in consideration of care and nursing bestowed upon her mother, board and washing, mending and work, done for her father, and to place her upon an equal footing with her brothers and sisters, whom her father had assisted; that no money consideration was mentioned or talked of, and no .mention was made of any payment or mortgage security therefor. “ She avers that said complainant never claimed payment from this defendant for said lands and premises, nor ever mentioned the subject of payment by her, nor any mortgage to be given by her upon said lands and premises, until about the twenty-second day of September, 1884, when he told her he wanted a mortgage on the farm, meaning the lands and premises aforesaid except said two lots, but did not state any amount; that this defendant then told him that she would not give any mortgage, as the understanding between them was that she should have the property clear; that said complainant said nothing more at that time upon that subject, but returned a week later, and asked this defendant if she was going to give him a mortgage on that farm; that this defendant answered him, ‘ No,’ and told him again that the understanding was that she was to have the property free and clear, and that, if she couldn’t have it so, she would give hini back the deed if he wanted it. Complainant replied: ‘ No; you keep it. Keep what you have. There is a certain one who wants to ruin your husband.’ This defendant then told him that she would either put the deed upon record or return it to him, and complainant again replied, £ Keep it, and put it on record,’ and then went away, parting with this defendant in a most friendly and satisfied manner, and never again, directly or indirectly, referred to the matter to this defendant prior to the commencement of this suit. “ This defendant, further answering, states that sometime last spring, or in the early part of summer, she' informed complainant that she had been trying to negotiate a loan upon said lots 1 and 2 for the purpose of erecting a building thereon, and complainant then offered to loan her the money, and take security for the same on said lots, and did from time to time, as her work of building progressed, loan her such sums as she required, until about the completion of said building, when he settled with this defendant the amount so loaned, and took her mortgage upon said lots for the aggregate so loaned, namely, the sum of $1,120, and did not set up any claim of lieu upon said lands at any time, on any of their meetings, in regard to said loan, or the mortgage given to secure the same, but during the whole time treated this defendant as the absolute owner thereof; and that said complainant has never, prior to the commencement of this suit, made any mention to this defendant of any other mortgage upon said premises, except, as hereinbefore stated, at the two interviews in September, 1884; and this defendant positively avers that the conveyance to her of said premises by said complainant was not upon nor for any other consideration than that hereinbefore stated and averred.” The 'cause was heard upon pleadings and proofs, and a decree entered therein that Chauncey Curtiss, in his lifetime, and on the nineteenth of January, 1884, agreed to and with the defendant Sarah Outhouse to sell and convey to her the south-east quarter of the north-west quarter, and the west half of the north-east quarter, of section 11, except 20 acres off of the north end, in the township of Plainfield, Kent county, Michigan, and also lots numbered 1 and 2 of Canton Smith’s addition to the city of Grand Eapids, in said county, for the price of $2, 785.15, to be paid by her to him upon the execution of a good and sufficient deed by Chauncey Curtiss to her, and that she agreed to pay him the said sum of $2,-785.15 therefor; that he executed such conveyance on that day, and she did not pay the purchase money, and has not paid it, but refuses to do so; that complainant had no other security therefor than a vendor’s lien, which it was decreed he had, and unless the said purchase price was paid by the fifteenth day of August, 1886, the premises, or so much thereof as should be necessary, should be sold to raise the said amount; that the premises on section 11 be first sold; and that defendant, and .all persons claiming or to claim from and under her, be forever barred from all equity of redemption in the premises sold. The vendor’s lien upon sale of real estate has always been recognized in this State; the earliest reported case being that of Carroll v. Van Rensselaer, Harr. Ch. 225. The doctrine, generally stated, is that the vendor of land who has taken no security, although he has made an absolute deed and acknowledged the receipt of the purchase price, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it, which will be enforced in equity against the vendee, volunteers, and all others claiming under him with notice; that is, against all persons except Iona fide purchasers without notice. The equity arises independent of contract, and it is therefore immaterial that the seller had no intention to reserve such a lien. 2 Sugd. Vend. & P. 675. And if the purchaser alleges that the lien does not exist, for any reason, in a particular case, the burden is on him to show the circumstances which repel the presumption of its existence or rebut the equity. 4 Kent, Com. 152; Garson v. Green, 1 Johns. Ch. 308; Gilman v. Brown, 1 Mason, 191, 213, 214; Schnebly v. Ragan, 7 Gill & J. 120, 125; Tompkins v. Mitchell, 2 Rand. 428, 429; Allen v. Bennett, 8 Smedes & M. 672, 681; Camp bell v. Baldwin, 2 Humph. 248, 258; Manly v. Slason, 21 Vt. 271. But when a vendor resorts to a court of equity to declare- and enforce his lien, it is necessary that he allege the contract of sale with reasonable certainty, and that the consideration and terms of payment must be alleged and clearly proven; otherwise the court has no data for the enforcement of the lien. Mowrey v. Vandling, 9 Mich. 39. The bill in this case alleges a sale to the defendant Sarah Outhouse, for the purchase price of $4,637.50, on the nineteenth of January, A. D. 1884, and that a mortgage was to-be executed by her immediately upon the execution of the deed; but no time or terms of payment áTe stated or set forth in the bill of complaint. The proof fails entirely to-substantiate the claim made by the bill that the purchase price agreed upon was $4,637.50. Complainant testifies that it was to be the amount of indebtedness due him from George H. Outhouse, which he testifies was $3,953.15, and the amount found by the decree of the circuit court was $2,~ 785.15. Complainant’s counsel has made and presented a computation, based upon the testimony, from which he claims that the purchase price was $3,137. The statements contained in the bill and answer afford no information of what the transaction between the parties really was, as developed by the testimony. The principal witnesses were the complainant, Chauncey Curtiss, the defendant Sarah Outhouse, and her husband, George H. Outhouse. It appears that in 1873 George H. Outhouse gave to Chauncey Curtiss a mortgage upon 80 acres of land to secure-the payment, in four years, of $1,750, with interest at 10 per cent., being for part of the purchase money of the premises mortgaged; that subsequently Mr. Outhouse purchased 20 acres more of land adjoining, and lots 1 and 2, block 1, of Canton Smith’s addition to the city of Grand Rapids, all of which he owned on the nineteenth of January, 1884; that on that day, by a deed bearing date the first day of January, 1884, but executed and delivered the nineteenth of January, Outhouse and his wife, Sarah, conveyed the lands known as the farm in Plainfield to Ourtiss. Upon 80 acres of this farm, as before stated, Ourtiss held a mortgage for the purchase price executed by Outhouse, and the conveyance by deed from Outhouse and wife to Ourtiss covenanted that the lands were free from incumbrance, except this mortgage. By another deed, executed the same day, Outhouse and wife conveyed the two lots upon Canton Smith’s addition to Curtiss. These deeds were placed upon record immediately. On the same day Curtiss executed and delivered to Sarah Outhouse a deed of the land covered by both deeds to him. This deed was in effect a quitclaim, containing a covenant simply against his own acts. Mr. Ourtiss, a witness in his own behalf, testified to the transaction substantially as follows: “George came to me, and he says that he got into a little trouble, being in company with my son James. He says there is 20 acres on the west side of the road, not in my mortgage, and he said they were going to put onto him for James’ individual debts, — he signed a note, I think, for a wagon, I think, and some other things, — and that they would make him pay. He signed it as company, and he had no concern in it. 'Now,’ said he fI want you to transfer that over, and, if there is anything left for Sarah, to save it for uer.’ isaid: ‘ I am not going to undertake to cheat anybody at all. If I can have my pay, that is all I want.’ He said: ‘ You give me a deed of the place, — give her a deed of ■the place, — and she will give you a mortgage back.’ ” That he (Outhouse) was to give him a deed, and he was to give her a deed; that the deeds were to be both alike, but that he now finds that the deed from him to Sarah Outhouse makes no mention of the mortgage, which it should have done; that the agreement was that she should give him a mortgage back for the amount .that was due from Mr. Outhouse to him; that the reason why the mortgage was not executed at the time was, Mr. Outhouse wanted to sell his place, and he agreed to wait until he had a chance to sell it; that there was no figuring up to ascertain the amount that was due him at this time, and Outhouse agreed that he would not put the deed upon record until after they had settled up; that he waited about six months, and they did not settle, and he urged them to give him a mortgage, and finally, upon a Friday, he told them it must be settled before the next Tuesday, and in the meantime they put the deed on record; that his whole talk about deeding the place to Sarah Outhouse, and taking back a mortgage, was with George H. Outhouse; that he never had any talk with Sarah about deeding the place to her, and he does not remember that he ever said anything to Sarah about her giving him a mortgage. He testified : “ I had a mortgage. When I bought the place there .was 80 acres east of the street, and 30 west; that made my 100 acres that I bought. Mr. Dunton sold 30 acres to Mr. Childs; he bought 30 acres that did not come into my deed. And Mr. Outhouse, when he bought it, Mr. Dunton deeded it to him, —them 30 acres that I didn’t have a mortgage on; and Mr. Outhouse says to me, — George Outhouse says: ‘ There is 30 acres there that they will put onto me to pay Jim Curtiss’ debts, — company debts, — and I had no concern in it;’ and he wanted to secure that away, so that they would not get it away from him for nothing.” That the property upon which he was to have security was the 100 acres. It was to cover nothing but the farm. He testified, further, that, in addition to the mortgage debt which he held against George H. Outhouse, he (Outhouse) agreed to secure him for a debt which was formerly represented by a note signed by one Loomis, which Curtiss had bought of one Housel, and which Curtiss had let Outhouse have to use in a purchase of property which he and James Curtiss made from Loomis. The note was dated March 37, 1873, for $400, and interest at 10 per cent. He also testified that after the deed was given — but the date he is unable to tell — Mr. Outhouse figured up the amount he owed him, and he (Curtiss) made a memorandum of it, and at that time the mortgage amounted to $3,500, and the Loomis note to $453.15. He says that there was no note or other personal obligation for the sum secured by the mortgage from Outhouse to him; that at the time the,deed was executed they had not reckoned up; that it was their agreement that the deed that he gave her was not to be put upon record until they had reckoned up; that there was nothing said how long the mortgage was to run, nor the rate of interest it should bear, nor whether it was to be paid in one or more installments ; that Mr. Outhouse did the whole business; that Outhouse did not tell him that he was acting for Mrs. Outhouse, neither did she tell him so in particular, but she acquiesced in everything that was done. Question hy Mr. Uhl. “ You say the mortgage she was to give was to include the 20 acres as well as the other land ? “A. He said he wanted to save that 20 acres for her to keep from paying unjust debts. “ Q. So that the mortgage was to cover the land that was in your old mortgage, and the 20 acres? “A. Yes, sir.” The above is substantially the version of the transaction as given by Mr. Curtiss. He was, at the time his testimony was taken, about 87 years of age, and his evidence shows that his memory was somewhat weak and defective, but, considering his advanced age, it was remarkably clear and retentive. There is no intimation that his intellect was enfeebled to that degree that he was not fully capable of transacting business, nor is it claimed that any fraud or unfair advantage was practiced upon or taken of him in the transaction narrated. What plainly appears from his testimony is this: His son-in-law, Mr. Outhouse, was the owner of- 100 acres of land in Plainfield, and two lots in the city of Grand Eapids. The two city lots and 20 acres of the Plainfield farm were unincumbered, and 80 acres were incumbered by a mortgage held by complainant. The son-in-law became embarrassed, and, in order to place his property beyond the reach of his creditors, he gave a deed of the lands, without consideration, to his father-in-law, and he, without consideration, conveyed the same lands to his daughter) the wife of his grantor. He now asks that he may have a vendor’s lien declared and enforced in his favor for the amount of indebtedness from the son-in-law to him at the time of the transfer. The transaction was tainted with fraud, and, under such circumstances, courts of equity leave the parties where they have voluntarily placed themselves. Nor is the transaction relieved of its fraudulent character by the claim that the purpose was to evade the- payment of an unjust debt, in which the son-in-law claimed to havé no concern. Such claim is always made by a failing debtor as an opiate to quiet the conscience for committing the wrongful act. The testimony in the record shows that, after the deeds were made, creditors levied upon the property, or portions of it, as the property of Mr. Outhouse; and, if this case was a proper one for the enforcement of a vendor’s lien, it would be a question requiring consideration whether such creditors should not have been made parties, and how far their rights would be affected in a proceeding to enforce such lien. There are other difficulties in the way of supporting the decree m ade in the court below arising upon the case as made by the complainant’s proofs. The bill of complaint asserts that Sarah Outhouse agreed to pay the purchase price of |4,-637.50, and asks for a personal decree against her. Complainant shows by his proof that she never agreed to pay such purchase price, or any price, for the land conveyed; that there was no agreement made with Outhouse that he should be discharged from his obligation to pay the debt which he owed to Curtiss, and that his wife should assume it or become liable for it. The bill asks, and the decree grants, this result; but it is entirely unsupported by the proofs. The bill also states that the agreement was that the purchase price should be secured upon the 100 acres of land, and the city lots were not to be included in the mortgage. Yet it prays, and the decree grants, a lien for, the purchase price upon both the city lots and the 100 acres. This is also entirely unsupported by any proof in the case. The testimony of the complainant, Curtiss, shows that after the execution of this deed he loaned his daughter, Sarah Outhouse, from time to time, during the year 1884, and before the commencement of this suit, sums of money to build upon these lots, and that he took from her a mortgage' to secure the sum of $1,120, so borrowed, covering these city lots; and this he did without making any claim that he had a lien thereon for the purchase price. These circumstances, taken in connection with the others attending the transaction out of which the conveyance to her was made, strongly repel the inference that a vendor’s lien exists in favor of complainant, Curtiss. Sarah Outhouse was produced as a. witness in her own behalf, and gave her version of the affair as follows: That Mr. Curtiss came to her house, and asked her if she knew of a note being given by her brother and signed with her husband’s name without his knowledge and consent; that she told him she did, and he asked her what Mr. Outhouse would do about that, and she told him that she did not know; that he told her that he must not do anything about it; that he had reasons for protecting her brother. He told her then that she should have the deed of the place; that he would give her the deed of the place if she could make the bargain with her husband, — if she could persuade him in any way not to trouble Mr. James Curtiss; and the further consideration was what she had done for him and for her mother when they were living with her ; “ that she should have the deed of the place free and clear was the very words used.” He said he had given to the older daughters, her three older sisters, and he had never given her anything; that he had helped those three, and had not her; that he never mentioned anything about her giving him a mortgage on the farm, and she never agreed to give him one; that at the time the deed was given to her, or prior thereto, no money consideration was spoken of as to the price to be paid for the farm. It quite plainly appears from her testimony that she and her husband fully understood the occasion and the reason for placing the title of the premises in question in her name; and I am satisfied that while, in one sense, she might understand that it was intended as a gift to her, yet she was quite well aware that it was a gift made at the expense of her husband’s creditors, and for the purpose of placing the property beyond their reach. The explanation she makes of why the deed was to be kept off the records is not very satisfactory. It is proper to say that Mr. Chauncey Curtiss was recalled, and- denied positively the testimony of his daughter Sarah, and denied that he executed the deed with the intention of giving the farm to her. He again asserted that his agreement was made with Mr. Outhouse; and, as his testimony is given in a more connected manner than when he was first produced, I quote from his testimony. He was asked to state his conversation with Mr. Outhouse, and he testified: “ He came to me, and said that there was going to be some trouble about some land that has been testified to all over, and he wanted I should take a deed. It would not do, he said, for him to give a deed directly to her. Is that the law? “ Q. Never mind; just testify. “A. He would give a deed of that 20 acres in addition. I had a mortgage on the land, all but the 20 acres; and he would give the deed to me, and I was to give the deed to her, and she was to give me a mortgage back on it; and, in regard to that, he requested me never to say a word to her about it; and she and I never had a word of conversation about it until we got into the buggy to come down and make out that deed; and we came down, and it was made out by that man. I suppose he agreed to do it all so, and so I trusted him to do it. “ Q. Who do you mean by £he?’ “ A. Mr. Outhouse. He mentioned there was going to be trouble, and I told him I didn’t know anything about it. I knew that there was trouble growing. “ Q. What conversation did you have with her, if any, the day that you came down to have the deed drawn, in the buggy? “A. I don’t remember that there was a single word said about it, only coming down to make out the writing. He agreed to do all this business, and she should give me a mortgage back, and I supposed it was all right; and I went in a number of times, and asked to have a settlement; and the last time — very nearly two years, I guess, I kept going; I wanted to settle up my business — on Friday, I went in. I said, * Sarah, this must be settled up before Tuesday; I am not going to wait any longer.’ She said once before that, ‘Hadn’t you as lief have the money as to have a mortgage?’ —keeping me off, he was about selling it. I said, ‘Yes.’ I said, ‘I will give you a deed back. You shall have it for $500 less than it amounts to if you will pay the money,’— because I had rather have what he owed me than the place by $500. I didn’t want it. Once he could swap it away. He had a bargain made. He was going to take a place in the Eapids, up there, and I said, ‘ If you will take that place,— they asked him $1,500 to boot, — I will take that place off your hands, and allow you $1,600 on what you owe me.’ “ Q. That was before Mr. Outhouse deeded it to you? “A. Oh, yes; nearly a year.” Mr. Outhouse gives his version of the transaction, in answer to questions of counsel, as follows: “ Q. What was that agreement? “ A. That agreement was that I owed him, and I wanted to pay him. He wanted me to straighten it up, and I had got into a little trouble, and I told him I wanted to convey that farm to him, and also the lots; that I wanted him to hold the deed of the farm, and to convey the two lots to my wife. “ Q. Is that all ? State the whole fully. “A. And I did convey the property to him. I gave him a deed of the farm; and also a deed of the two lots. “ Q. The same conveyance all in one deed? “ A. No, sir; separate deeds. “ Q. What was the consideration of the deed of the farm from you to him ? “ A. I think— “ Q. Or what was the talk about that between you and him? “A. I had always asked $4,500 for the farm, and I think that was the consideration. “ Q. What talk did you and he have? . “A. There was not any talk in regard to the value of the farm, only I told him— “ Q. What talk did you have about the entire transaction? How came you to deed it to him, and what was your talk about' the whole transaction? “A. I told him I wanted to deed him the farm and the two lots; and he says, ‘ There is more in the farm than is coming to me.’ Well, I told him then he knew what he could do with it. I wanted him to deed the two lots to my wife. Q. Did you hear Chauncey Curtiss’ testimony in this case? “A. No, sir. “ Q. He has testified as follows: ‘ George came to me, and he says that he got into a little trouble, being in company with my son James. He says there is 20 acres on the west side of the road not in my mortgage, and he said they were going to put onto him for James’ individual debt, — he signed a note, I think, for a wagon, 1 think, and some other things, —and that they would make him pay. He signed it as company, and he had no concern in it. “Now,” said he, “I want you to transfer that over, and, if there is anything left for Sarah, to save it for her.’” Do you remember any such conversation, in whole or in part? “A. I told him that I had got into some trouble, and there was several notes out that I didn’t want to pay; and I says, ‘You want this straightened up now, and I will deed you that farm;’ and he says, ‘There is more in that farm than is coming to me.’ I said, ‘You know what you can do with it.’ I said, ‘ You can fix that;’ and I says, ‘Furthermore, I want to deed you those lots, and I want you to deed those back to my wife, and you can keep the deed of the farm yourself.’ ” The witness also testified that he was not' aware that Mr. Curtiss had conveyed the whole property to his wife until after it had been done, and nothing, -was ever said about giving a mortgage back, or by his wife, to secure the debt he ■owed Mr. Curtiss. His testimony upon cross-examination is quite significant ■of the object and purpose of these conveyances. I quote from his testimony. “ Q. Who first spoke about your deeding this farm to him at the time you made the deed, in January, 1884? “A. I think I did. “ Q. Where was the conversation? “ A. If I am not mistaken, I think he was riding down town with me in the buggy. “ Q. When was that? “A. That was either in November of 1873, I think, or 1883. I get these dates a little mixed. “ Q. What did you say to him? “A. I told him that I was getting in trouble, and I told him the whole circumstances. “ Q. Go on. I want to know what you told him. “A. I told him that I wanted to deed him that farm, and I also wanted to deed him the two lots. At first he kind of •shook his head, and didn’t know, and I told him about it. “ Q. I don’t ask you that. I ask you what you told him. “A. I told him that I wanted to deed him those lots and the farm. “ Q. You said you told him the circumstances. Repeat what you told him. “ A. I told him that I wanted to deed him the farm, and I told him about that note, and I heard of one or two others the same— “ Q. What did you tell him? “A. I says: ‘You.can take a deed of that farm, and hold it.’ “ Q. You say you told him about that note." I ask you what yon told him. “A. Iam trying to tell you. “ Q. You are not answering the question when you say you told him about the note. What I want yon to do is to quit this, and do just as you were when you were talking to him, and tell us what you said to him. When you say, ‘1 told him about the note,’ it don’t answer my question. Go on and tell all you said to him. “A, I told him that I wanted to deed him — give him a deed of — the farm and the two lots; that is what I told him» “ Q. Is that all? “A. And that I wanted he should deed the lots back to my wife. “ Q. Is that all? “A. And I wanted him to hold or keep the deed himself; and he says: ‘ There is more in the farm than there is coming to me. What shall I do with it?’ I said: ‘You can Bx that yourself; do just as you are a mind to.’ Now, that was the conversation. “ Q. Was that all of it? “A. That was about the substance of it. “ Q. Is that all you can now remember? " A. It is all I remember now; then we talked about other things. “ Q. Is that all you now remember? “A. All I remember now. “ Q. What did you mean a moment ago when you said you explained to him the circumstances? “A. I was then referring to that note. “ Q. Let’s have what you said to him about that note. “ A. I was telling him about what those notes were, and what those parties that held the note had said to me. “ Q. What did you tell him? “A. I told him I should be sued on them, and they would levy on that 20 acres; and I says: ‘Your mortgage does not cover the 20 acres, but I will have to pay somebody’s else debts out of that 20 acres of land, and I don’t want to.’ That is the conversation that I told him. “ Q. You have said ‘I told him about those notes.’ I don’t know what you mean by ‘ those notes. ’ What did you say to him about the notes? “ A. I told him there was some notes out, signed by the firm name of J. A. Curtiss & Co., that I had nothing to do with whatever; they were given for something else outside of the business. “ Q. What notes did you speak about? “A. The Fitch note. “ Q. How much was that? “A. I think $110 and something. “ Q. That was signed J. A. Curtiss & Co. ? “ A. Yes. “ Q. Given by whom? (‘A. Given by a man named Starr to J. O. Fitch, and indorsed by J. A. Curtiss & Co. “ Q. Who compose the firm of J. A. Curtiss & Co. ? “A. J. A. Curtiss and myself. “ Q. And you told him you wanted to convey that farm to him that the mortgage covered, and 20 acres you had that the mortgage did not cover, and those lots on South Division street? “ A. Yes, sir. “ Q. You say he shook his head. Why did he shake his head? What objection did he make? “ A. He didn’t make any objection, only he just shook his head; that was all. “ Q. Didn’t he say that he would not take any conveyance if there was anything wrong about it, or something of that kind? “A. No. “ Q. You told him these notes were not for you to pay, didn’t you? “A. Yes, sir. “ Q. Were J. A. Curtiss & Co. embarrassed at that time? "A. 'Yes, a little; I guess they were a little. “ Q. Afterwards a good deal, weren’t they? “A. Yes. “ Q. Was the farm levied on? “A. It was after the transaction was made. “ Q. After the transaction, — after the deed was made to the complainant? “A. Yes, sir. “ Q. It was not levied on, on a judgment rendered on any of these notes either, was it? “A. No, sir. “ Q. What did he say when he shook his head? “A. He didn’t say anything. “ Q. When you made that proposition to him, — made that statement to him, — did he say he would not go into anything that would cheat anybody at all; if he could have his pay, that was all he wanted ? “ A. No, sir; he didn’t say any such thing to me. “ Q. Nothing of the kind said? “ A. No, sir.” From the whole testimony it is apparent that Outhouse conveyed the lands in question to his father-in-law, and he to Sarah Outhouse, to place them beyond the reach of the creditors of Outhouse; and, under such circumstances, the vendor has no lien that can be enforced in equity. In Palmer v. Sterling, 41 Mich. 220, the facts indicated that the note put in evidence was dated back to the time of the sale of the land, and taken so as to furnish color to the transfer as a valid sale of land in case any trouble should arise as to creditors. The daughter in that case claimed that the deed was an unconditional gift. The Court said: “All the authorities rest upon the basis that the land was actually sold for an agreed consideration, payable at all events, and payable as the purchase price. Unless there was a sale for a' price, there could be no such relation as that of unpaid vendor and responsible purchaser. The lien can only exist as collateral to a debt which was a part of the transaction, and created simultaneously with the sale.” The authority of that case should dispose of this. Here was no agreed consideration, payable at all events, and payable as purchase price. The debt now claimed as purchase price, owing from a person other than the vendee, was not created simultaneously with the sale; and it was held in Weare v. Linnell, 29 Mich. 226, that,— “A person cannot become a purchaser by a transaction of which he is wholly ignorant, nor can there be, as against him, a vendor’s lien for a purchase price which he never agreed to pay.” The circumstances must indeed be exceptional that will create a vendor’s lien against a vendee who has never agreed to pay any purchase money. I do not see how it can exist upon the complainant’s testimony and proofs, relieving it of any intentional wrong-doing, and giving it the most favorable construction. It was said upon the argument by defendants’ counsel that the complainant was not remediless; that the mortgage given bv Outhouse to Mr. Curtiss upon the 80 acres has never been discharged, and was not merged in the deed to Mr. Curtiss. The question is not before us upon this record, and calls for no discussion. I think the decree of the circuit court should be reversed, and the bill of complaint dismissed, with costs of both courts. The other Justices concurred.

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Campbell, C. J. Plaintiff sued as beneficiary named in a benefit association certificate issued to one Maggie Gibbons in April, 1883; the amount having, as claimed, become due on the death of the person who became a member when the certificate issued. The defense rested chiefly on two grounds,— one being that plaintiff was not so related to the decedent as to be entitled to take the benefit, and the' other that the deceased, on securing membership, misrepresented her age by about 10 years. The court below directed a verdict for defendant. The company sued was not organized under the laws of Michigan, and we have no means from the record of knowing whether the restrictions put by our laws on the relationship of the members and beneficiaries exist in the state of Indiana, where the company was formed. As the certificate is payable to plaintiff, and as no particular stress seems to have been laid on this point below or here, we need not consider it. It is evident from the terms of membership that the age of applicants is regarded as very material, and misrepresentation is made ground of forfeiture. It not only changes the actual risk, but the membership dues are measured by it, so as to' make a difference of several per cent, between the age of the-deceased as shown by the testimony, and her age as represented to the defendant. This was the basis of the decision below. It was shpwn, without contradiction, if the testimony was admissible, that decedent was born December 14, 1843, and was therefore between, 40 and 41 years old when she became a member of the defendant company. Her application represented that she was a little over 32. The difference of just eight years is very great, and one which cannot be accounted for by any theory that would save the membership. The representation was a warranty, and it was also very material. The age of decedent was not shown by plaintiff at all, and by defendant was proved by three distinct pieces of testimony. The first was a sworn and examined extract from the parish record of the Catholic church at Amherstburg, Ontario, which showed her baptism in the latter part of December, 1842; reciting the names of her parents, with the description of her father as a soldier, and a statement of her age as born December 14, 1842. The priest swore this record was required by the rules of the church to be kept. It was more than 30 years old. Another document was a leaf sworn to as taken, after his death, from the soldier’s private record-book required to be-kept by soldiers in the British service, containing the names of the father and Iris wife, and the names, ages, and places of birth of all his children. In that record the description of decedent exactly corresponds with the parish record. This leaf was sworn to by an older sister of decedent, who removed it from the book after her father’s death in order to preserve the memoranda. ' Thjs sister also swore to the age of decedent, by reference to her own age as several years the elder of the deceased. Deceased was fully identified as the daughter of her parents and sister of the witness, in whose name the policy was first made out, and who paid several of the assessments. It was objected, however, that these documents should not have been received. So far as the family memorandum is concerned, there is no authority against its reception. It was precisely like the entries in a family Bible, or other family book used for keeping family minutes. The use of such things is almost universal, and it would generally be difficult, if not impossible, to prove relationships and ages without them. It in no way derogates from authenticity that it has been torn out of the book which originally held it, so long as it was traced and explained. It is on a printed form evidently designed for uniform army use, and it was kept by the father of deceased, so long as he lived, for the purposes mentioned. There is no reason why the parish register should not be received and credited. The rule laid down in England, and followed until recent times, which recognized none but registers and similar records of churches of the established ■religion, has been abrogated there by statute, so as to open the door to many other records which all churches keep, and which are quite as likely to be accurate as those of an established church. Those registers serve a purpose equivalent to that served by family records. In this country they are fairly to be dealt with as equivalent to corporation records, which are generally evidence of such matters as are recorded in the usual course of affairs. There is not much authority on the subject here, but all the analogies and reasons which apply to other presumptively correct documents apply to these. In this State, while it has not been definitely decided by any reported decision of this Court, it has been universal practice to receive such entries and papers as reliable evidence. In Hutchins v. Kimmell, 31 Mich. 126, a marriage was proved in that way; and in Durfee v. Abbott, 61 Mich. 471, recently decided by this Court, in a case sharply contested, the records of a Lutheran church in Detroit, showing the baptism of one of the parties, were resorted to, and practically disposed of a main issue in the case, being regarded as proof of the time of baptism, although not of the age, of the infant as there set out. The person described as being baptized is thereby indeatified as in being at that date. The question was decided in favor of such entries in an ■early case in the Supreme Court of the United States, where the entries of burial in a church in Philadelphia were held •admissible in a land controversy in Kentucky, tried in one of the courts of the United States. It was there held expressly that they were competent testimony. Lewis v. Marshall, 5 Pet. 470. There is no more reason to suppose these entries will be incorrect or falsified than any other. Fraud is possible anywhere ; but it cannot be presumed in records of churches any more than in any other documents preserved for similar purposes. The rejection of such proofs would be disastrous. They aTe relied on by the whole community. If anything had been introduced to contradict these facts •shown by the documents, and by the testimony of the sister •of deceased, there might have been issues raised that should have gone to the jury. But a court cannot properly submit to a jury facts on which the testimony is all one way. Wisner v. Davenport, 5 Mich. 501; Pennsylvania Min. Co. v. Brady, 16 Id. 332; Medina Tp. v. Perkins, 48 Id. 67; Seligman v. Estate of Ten Eyck, 49 Id. 104; Chadwick v. Butler, 28 Id. (2d ed.) 349, and notes. Plaintiff had the burden of making out her claim; and, while the recital of age in the certificate of membership would perhaps have availed her had no inquiry been made as to age, it was merely the decedent’s own statement, and could avail nothing against testimony. Here there was testimony that was positive and unambiguous, and it must stand until ■contradicted or impaired. The court below took this view, and the judgment should be affirmed. The other Justices concurred. See Sup. Lodge Knights of Honor v. Nairn, 60 Mich. 44.

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Morse, J. The defendant in this case occupies and maintains a gravel road in the township of "Walker, in the county of Kent, and leading into the city of Grand Rapids. - This action was commenced in justice’s court, by filing the complaint of Noadiah C. Wright, which was as follows: “State of Michigan, County of Kent — ss.: The complaint and examination on oath and in writing of Noadiah C. Wright, taken and made before me, Thompson Sinclair, a justice of the peace of the city of Grand Rapids, in said county, upon the twenty-sixth day of March, A. D. 1884, who, being duly sworn, says that heretofore, to wit, on the twenty-sixth day of March, A. D. 1884, at the township of Walker and in the county aforesaid, and for six days and more immediately prior thereto, the Grand Rapids & Walker Plank Road Company, a corporation organized under the laws of this State, did take, and 'still continues to take, toll for passing over the portion of their road which lies between sections 15 and 22 in the said township of Walker; and that during the whole of said time, and for a long time theretofore, said portion of said road was out of repair so as to make the passage of teams and vehicles inconvenient and dangerous. Wherefore he prays that said company be sued for the penalty provided by law in such case, and further dealt with in relation to the same as law and justice may require. “Noadiah C. Wright.” “ Taken, subscribed, and sworn to before me the day and year first above written. “Thompson Sinclair, “Justice of the Peace.” Summons was thereupon issued and served, and a trial had. The plaintiff recovered, and defendant appealed to the Kent circuit court. The pleadings in the justice’s court were oral, and returned by the justice to the circuit as follows: “ The plaintiff declared in an action of debt for the penalty given by section 3640 of the Compiled Laws of 1882, for fifty dollars damages. The defendant pleaded verbally the general issue.” Upon the trial in the circuit, when the first witness was sworn, the defendant objected to any testimony being received under the declaration for the reason that it stated no cause of action. The circuit judge ruled that an amended declaration might be filed, and thereupon, against the objection and exception of defendant’s counsel, the prosecuting attorney filed an amended declaration. The defendant also objected to any evidence being given under the amended declaration, on the ground that it was not for a cause of action that was tried in the justice’s court. The objection was overruled, and the trial proceeded. As the printed record and the original bill of exceptions appear in this Court, the objection is well taken. The declaration, as amended, alleges an indebtedness of $50, whereby an action has accrued— “ According to the provisions of section 55 of chapter 36 of Howell’s Annotated Statutes of the year 1882, being compiler’s section three thousand six hundred and forty-six of said Howell’s compilation.” The penalty sued for in justice’s court is found in section 45, c. 96, and compiler’s section 3640. As the prosecuting attorney was only authorized to plead an indebtedness in this general way by referring to the section and chapter of the statute violated (How. Stat. § 8432), this variance' is fatal. As the section and chapter mentioned in the amended declaration do not correspond with the compiler’s section, and that section does not give a penalty of $50, it is probable that there has been a mistake made in drafting the bill of exceptions. There was no appearance for the people on the argument in this Court, and we have therefore received no explanation, on the plaintiff’s part, of this discrepancy. We can only act upon the record; and as it stands the judgment must be reversed, and a new trial granted. There is also an evident mistake in the printed record and in the bill of exceptions filed in this Court, in the description of the road, which would become material. It is described as running west between sections 13 and 22, which is an impossibility, and also as running north-westerly through sections 13 and 10 and 2 and 4, which is another impossibility. The case must go back, as stated, as we have no power, after hearing, upon our own motion, to correct the errors contained in the record, if we were inclined to do so. The other Justices concurred.

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Sherwood, J. This case was an information for the murder of an infant child, about two and one-half months old, during the night of the eleventh day of June, 1885, at Lebanon, in the county of Clinton. The respondent is the father of the child alleged to. have been murdered. The testimony in the case tends to show that the child was well and healthy on the evening before it died; that on that night the respondent and his wife went to bed about 10 o’clock, — first, however, putting the child in question, and its twin brother, in the crib together, which stood in front of the bed, and about eight inches therefrom; that Mrs. Foley slept upon the front side of the bed, and the respondent on the back side, and which was next to the wall; that no one but respondent and his wife and the twin children stayed in the house that night, the house being locked up before respondent and his wife retired; that the respondent arose first in the morning; that it was then about 6 o’clock; that he went to the crib, found the children lying as placed the night before, and both were dead; that there was no evidence of the house having been entered by other persons during the night, but the children’s persons bore evidence of personal violence, and, when first discovered in the morning, their faces were bloody, — the blood proceeding from the nose and mouth of each child. Their skulls had also apparently been crushed. After the children had been buried four days, the bodies were disinterred, and a post mortem examination had. About this time the respondent was arrested, charged with the crime of murdering the child whose name was Edward Eoley, and described in the testimony as the larger of the twins. Upon the trial of the cause it was the theory of the prosecution that some time in the night of the terrible tragedy the respondent left his bed, went to the crib containing the infants, and there killed them both by crushing their heads and compressing their mouths and nostrils until strangulation became complete and life extinct. The respondent pleaded not guilty to the information; but, if he had any theory by whom or in what manner the death of the child Edward was caused, it is not apparent in the record. He was not sworn upon the trial, but gave his statement of the transaction to the prosecuting attorney, which was put in evidence, the substance of all of which appears in the record. Nowhere in this evidence, however, does he, except inferentially, deny the commission of the homicide; and, while he intimates the child died from natural causes, the mother had the impression some one had “murdered her baby boys.” The cause was tried in the Clinton circuit, and the jury found the respondent guilty of murder in the second degree. The court sentenced him to imprisonment during life. His counsel now ask a review of the case in this Court. Seventeen errors are assigned. The seventeenth assignment of error is based upon the defendant’s fourth request to charge the jury that— “The circumstances may create a probable ground for presuming guilt; but each and every circumstance, severally or united, are no more than inconclusive probabilities, and do not warrant conviction.” This, substantially, would require the court to direct the verdict of the jury. There were several medical men examined as experts. Their testimony was clear and intelligent, and to the effect that the death of the child Edward was caused by external violence, resulting in asphyxiation and injury to the brain. The fact that the children were killed by some one was not much contested upon the evidence. There were circumstances testified to, and not controverted by the defendant, strongly tending to establish the charge made against the respondent, and we think the sufficiency of the proof was properly submitted to the jury, and the court was correct in so ruling. , The first and second assignments of error relate to hypothetical questions put to Dr. Topping, based on the following assumed state of facts: “An infant healthy and all right in every respect at birth, and, at the age of eleven weeks, in good health seemingly; all right during the day, and as late as between 4 and 5 o’clock p.m.; seen about 6 a.m. the next morning dead, with back, neck, bowels, and hands warm, blood running out of nose, temples purple, back of one shoulder purple, lips purple, one-fourth of the head on right side pushed in deeper than rest of head, and left side sunken in somewhat, blood on the mouth and nose, and on the clothes around the neck, and, on washing head about an hour later, the sunken places felt to give in under the hand; and, upon post mortem made on the fifth day after death, and fourth after interment, found as follows: The external appearance of the child showing decomposition commenced; whole of body discolored; head and face swollen considerable; frothy, bloody matter oozing from mouth and nose; hands deflecting; quite a quantity of fluid beneath the scalp, particularly on the top and right side, and the free border of the right parietal bone resting over frontal; right eye protruding half its width; on opening the scalp, a sero-sanguineous fluid spouting out; tissues around and over the right ear somewhat thickened, and partly discolored ; skull, on being denuded, showing right parietal bone detached, and overlapping frontal one-half inch or more, the suture being broke apart so that the scalpel was passed in without touching the adjacent parts, some of the serrated edges broken off, and the anterior inferior corner of the right parietal bone also broken oil; left side parietal bone overlapping parietal, giving head appearance of being twisted; suture between the parietal and temporal bones on right side broken; membranes of brain all healthy, with no injury or discoloration; congestion, but blood-vessels not broken; brain in a semi-solid condition, with no extra vacations of blood or ruptured blood-vessels in it; thoracic and abdominal viscera all healthy, but congested; heart in a natural condition; that there was some dark blood in its cavities, being a little more on the right side than left; blood in the great blood-vessels not congested; lungs in an emphysematous condition, and with dark, purplish spots on them'under the pleura; larynx and trachea and bronchia healthy, but congested, no obstruction to them, and containing some mucous or frothy fluid; child well nourished; quite an amount of adipose tissue, and no wasting away of tissues.” After such statement the following questions were asked: “ 1. What, in your opinion, caused the death of the child?” “ 2. In your opinion, is there any disease which would produce death accompanied by conditions stated [which were repeated]?” These questions were objected to on the following grounds, as stated by respondent’s counsel: “1. That the post mortem examination by Gillam and Weller was made without any notice to the father of Edward, the accused. “ 2. The post mortem examination, of Edward Foley was made without giving Thomas Eoley, the father of Edward Foley, notice to be present. “ 3. Tüat said post mortem was not made in accordance with the statutes of this State, and in violation thereof. “4. That there was no inquest held over the body of Edward Foley. “5. That the testimony of Drs. Gillam and Weller, at that time, showed that an autopsy was not made upon all the parts of the body, and was irregular and invalid. “ 6. That the hypothetical question does not take into account all the conditions of the body, as testified to by the witnesses when they came there on the morning, and immediately after the night when they claim the death occurred; further, that it is not in accordance with the testimony of Dr. Gillam given in the case, or with his examination reduced to writing and filed in the case, and made a part of the original examination.” The objection was overruled by the court, and the doctor was allowed to answer the questions. To the first question he answered: “ I would give it as my opinion that the child died from asphyxiation, or from the form of it denominated suffocation, aided by extensive injury of the brain.” And to the second question he answered: “I know of no disease which would produce death with those symptoms.” He also testified that, in his opinion, the injury to the head was “made before death.” We are unable to discover any error in allowing these questions to be put, and in receiving the answers given. The facts contained in the hypothesis were fully supported in the testimony given, and the questions were both relevant and competent. The learning and ability of the physician were unquestioned. I fully agree with the counsel for the respondent in this case that the expert testimony of physicians was of very great importance, and that the answers to the hypothetical questions asked, and the weight given them by the jury, were dependent upon the jury’s finding the facts assumed in-the question to be true. The charge of the court was full and faultless upon this subject; but, notwithstanding the care and circumspection of the court exercised upon this point, it is possible, as suggested by counsel, that the jury found difficulty in determining what facts were derived from the post mortem of Edward, as distinguished from those in the case of the other child, and which were contained in the hypothetical questions. • ' The testimony shows, I think, that the circumstances of the death, and the manner in which it was accomplished, were so nearly the same in the case of both infants that the respondent could not have been prejudiced in the case from the cause suggested. The jury found that the child Edward did not die a natural death, but was feloniously killed; and, if such was the fact, I think there can be no question upon this record but that the other child came to his death on the same occasion, by the same hand, and in the same manner. However this may be, I know of no reason, nor is any made to appear in this record, why the jury in this case, under the clear and impartial charge given by the court, were not capable of discriminating as to what facts related to Edward and what to the other child. In regard to the testimony relating to the other child, the circuit judge charged the jury as follows: “ And here, gentlemen, I call your attention to some evidence in the case as to the appearance, the morning of the eleventh, of the other child, and also as to the post mortem examination of the body of the other child. That evidence is not in this case for the purpose of showing that the respondent is guilty of another crime; for, if he was, it should have no weight in this case. He is not to be convicted of this crime charged because he might possibly be guilty of another. You should be careful not to consider it in that connection. But it was received because you might conclude that, if there was violence to the other, there was violence to. this, — was a part of one and the same transaction. If it was i^ofc a part of the same transaction, if the other child did not receive the injuries which the evidence it is claimed discloses, then that evidence as to the other child should not be considered, — neither the appearance of the other child on the morning of the eleventh, nor what was .found as to the body of the other child at the post mortem examination; but if it was a part of the same transaction, then all that occurred there would be part and parcel of a connected cluster of events, which would reciprocally serve to color and characterize each other, and are properly to be considered in order to judge correctly as to the quality of the act done.” In regard to the expert testimony, the court further charged the jury: “ Bearing upon this question, as to how that child came to his death, or what was the cause of it, certain physicians have been called as experts. They are called to testify, not because they were present, and witnessed any facts which they came here to tell you about, but because they are supposed to have given this particular branch of science more study than you or I, or the attorneys, and hence they come here to give you their judgment, based upon certain facts which are supposed to be proven from the evidence; and, upon that statement of, those facts, they give you their opinion or their judgment. “Now, gentlemen, that evidence, in the end, is subject to your supervision and to your judgment. They give you their opinion, as I have said before, upon a supposed state of facts,—supposing certain things to exist as shown from the evidence. Now, it becomes important for the jury, just as far as you can, to look into the evidence, and determine whether the facts which are supposed to exist in the hypothetical question that is asked of the doctors do actually exist,— whether there is any evidence upon which to base them in this case, and whether the facts supposed to exist be true or not; because if one fact supposed to be true, included in the question, is untrue, not supported by the evidence, then the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we don’t know what his opinion would be if one of those facts were withdrawn. ” Under the testimony in the case, and the charges above quoted, I do not think the respondent’s first and second assignments of error can be sustained. The fourth, fifth, thirteenth, and fourteenth assignments of error may be considered together. They all raise the question whether it was competent for the prosecution to give testimony tending to show that the. smaller infant was killed on the same occasion as the killing of Edward, — was a part of the same transaction, — and that the circumstances of such killing were the same. In this case it was impossible, as appears by the record, to give the circumstances surrounding and connected with the death of Edward except with those connected with the death of the other child. They both lay in the. same crib, in the same room; died the same night, between 10 o’clock in the evening and 6 o’clock in the morning; both were found dead in the same place in which they had been placed in the evening, and at the same time; upon both were found the same marks of violence, which, in the opinions of the several physicians, produced death; and all the statements made by the respondent and his wife (the only persons in the house that night except the infants) concerning the death of Edward related to both children, and, so far as can be discovered from the statements, acts, and feelings of the respondent, he had the same motives for killing the one as the other of these children. I have been unable to find any authority for sustaining these several assignments of error under the eiicumstances appearing upon this record; and, if any can be found, I am free to say it could never receive my assent. If any of the testimony offered was admissible, and admitted, although the purpose announced by counsel for which it was offered was not the true ground of its admission, it would make no difference, provided the proper direction was given in the charge; and this I think was sufficiently’ done in this ease, so far as the point is made by respondents counsel. The several objections contained in these assign ments of error were properly overruled, and the testimony was properly admitted. People v. Marble, 38 Mich. 120; State v. Lapage, 2 Amer. Crim. Rep. 506, 568, 581, 582; Roscoe, Crim. Ev. 91; Rex v. Geering, 18 Law J. Mag. Cas. (N. S.) 216. Any facts tending fo prove the main facts, and cotemporaneous to and connected with them, are admissible, as a general rule. 1 Greenl. Ev. § 108; 1 Whart. Crim. Law, §§ 648, 649; People v. Mead, 50 Mich. 228; People v. Doyle, 21 Id. 221; Coleman v. People, 58 N. Y. 555; 1 Bish. Crim. Proc. § 1125; Heath v. Com., 1 Rob. (Va.) 735; Haskins v. People, 16 N. Y. 344. The people’s case was largely made up of circumstantial evidence. The objections taken to the testimony of statements made and language used by the respondent relating to these infant children, tending to show his motives and inducement in putting them away, I think cannot be sustained. • These statements were all competent, and much of this testimony I regard as very significant. The objection to the testimony of Mrs. Eice was not well taken. The evidence was competent. The testimony referred to the respondent’s conduct and statement immediately after the discovery of the death of the children, and at the house where it occurred. It was the statements of the wife, in the presence of the respondent, in regard to the manner of the children’s death, and appears to have been necessary to a full understanding of what was said by the respondent ; and in such case the rule sought to be applied, that the wife cannot testify against the husband, who is the respondent, is not encroached. The wife was not sworn in the case, and the facts queried after were a part of the res gestee. I see no error in allowing the written statement of the respondent in evidence. The record discloses no undue influence used in obtaining it; and the statement was given by one of the two persons only who had the opportunity to know all the facts connected with the tragedy when the homicide actually occurred. A full examination of the manner in which it was obtained by the public prosecutor was gone into before it was received; and the disclosures made upon the subject, and the testimony given, were not contradicted, and, under the circumstances, it must be held admissible. Roscoe, Crim. Ev. 52, 53; Wright v. State, 1 Amer. Crim. Rep. 191. Counsel for respondent requested the court to charge the jury as follows: “2. To warrant a conviction, the circumstances proved ought fully to exclude all possibility that any other person could have committed the crime. “3. The proof in this case consists of circumstances, but, taken severally or united, they do not exclude the hypothesis that some other person might be guilty of the murder; and, if they do not, the prisoner ought not to be convicted.” I do not understand the first of these requests to state the law correctly. If this statement of the law is correct, it would be impossible to convict unless the circumstances were such as to exclude all possibility that any other person could have committed the crime. The third request embodies the same doctrine as the second, and then asks the court to direct a verdict for the respondent. TJpon the subjects contained in these two requests the court charged the jury: “ It is necessary for the prosecution to show, under all circumstances, as a part of their own case, that there is no innocent theory possible which will, without violation of reason, accord with the facts proven in the case. Circumstances are never to be presumed. Each fact making up the chain of circumstances must be proven beyond a reasonable doubt; and, if the prosecution fails to prove any one link making up the chain of circumstances, the prisoner ought not to be convicted.” And following such charge the court said that— “ Each link must be proven beyond a reasonable doubt. Circumstantial evidence is sufficient, and is often more persuasive to convince the mind of the existence of a fact than the positive evidence of a witness, who may be mistaken; whereas a concatenation and a fitness of many circumstances, made out by different witnesses, can seldom be mistaken or fail to elicit the truth. But then those circumstances should be strong in themselves, should each of them tend to throw light upon and prove each other, and the result of the whole should be to leave no doubt upon the mind that the offense has been committed, and that the accused, and no other, could be the person who committed it.” I think this charge gave the respondent the full benefit of the rule established by all the decisions. After a careful review of this case I have not been able to discover any error committed on the trial in the circuit, and the judgment should be affirmed. The other Justices concurred.

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Bird, J. Plaintiff complains of defendant in an action of negligence for its failure to furnish proper tools, including goggles, for his use in its locomotive repair shop at Dearborn. He had judgment, and defendant assigns error. It appears plaintiff was employed at defendant’s repair shop as a boiler maker. On the day of the accident he was ordered to straighten or flatten a piece of boiler iron. He went to the tool room and procured a “flatter.” This is a piece of iron to put over the thing to be flattened to receive the blows of the sledge. When he was given the tool he was given a pair of goggles with the usual bows to wear while using it. While striking the flatter with the sledge his goggles fell off, and at the same instant a splinter of steel from the flatter hit him in the eye. He was given first aid and after- wards taken to the hospital, and several days later the eye was removed and an artificial one inserted instead. Plaintiff shows by his testimony that after striking the flatter he could tell that there was too much temper in it, and he took it to his foreman and complained that it was not a proper tool for such work, that there was too much temper in it, that it should be softer. His foreman assured him the tool was all right, and ordered him to return to his work. He also complained that the goggles were not suitable for the work. Instead of bows he says they should have had a strap to fasten around the head so they would not fall off while he was using the sledge. The trial court allowed the jury to pass upon the sufficiency of the flatter and the goggles. Defendant insisted when the proofs were in it was entitled to a directed verdict. This contention was denied. The Goggles. There is much doubt whether defendant would have been negligent if it had furnished no goggles. This question is much discussed by counsel. We think there is little profit in discussing that question in view of the fact that defendant did furnish them, and by a printed rule required them to be used. The real question then is, Did they reasonably serve the purpose for which they were intended? It was shown by the defendant that no different goggles were used in other shops of like character where any were used. It has been said by this court that in furnishing tools the master was under no obligation to furnish the best tool in use, if it were one that was in general use in other shops where like work was done, and reasonably served the purpose for which it was intended. Lyttle v. Railway Co., 84 Mich. 289. Plaintiff does not complain that the goggles were defective in any way, nor does he show that goggles with a strap on them were in general use in other shops where like work was being done. It was shown that the master had installed a safety device for the protection of his men, and one which was not generally in use. Under such circumstances, when the master selects the device and it reasonably serves the purpose for which it was intended we think no negligence can be predicated upon his failure to furnish a better one. As to this question we think defendant was entitled to a directed verdict. The Flatter. No authority need be cited to the proposition that the master is obliged to furnish his employees with reasonably safe tools with which to work. Plaintiff says the flatter had too much temper in it. Had it been softer it would not have given off any splinters. He called it to the attention of the foreman and he thought it was reasonably safe. Under such circumstances the plaintiff had a right to rely upon the mature judgment of his superior. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Scendar v. Winona Copper Co., 169 Mich. 665. The evidence upon the question whether the flatter was a reasonably safe tool to use was conflicting and we, therefore, think it was proper to submit it to the jury. Noble v. Bessemer Steamship Co., 127 Mich. 103 (54 L. R. A. 456, 89 Am. St. Rep. 461). As the case must be returned to the trial court for retrial, it may be well to advert to the fact that the declaration imperfectly alleges the injury by reason of defective tools, in that it does not point out what the tool was nor what the particular defect was. The safety device is the only thing pointed out. We think this should be cured by an amendment of the declaration before a retrial. Smead v. Railway Co., 58 Mich. 202. The judgment must be reversed for the error pointed out, and a new trial granted. Defendant will recover costs of this court. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

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Sherwood, J. In this case the plaintiff sues the defendant for an alleged assault and battery, which he avers was -committed upon him on the nineteenth day of September, 1882, by one of the conductors of the defendant, while he was riding upon one of its trains, without any justification. The case was tried before Judge Montgomery in the Kent ■circuit by jury, and the plaintiff failed to recover, and now brings error. The case was before this Court on error at the January term, 1884. A new trial was then ordered, which has since been had, the proceedings in which we are now called upon to review. The plea in the case was the general issue. The plaintiff’s claim is that the conductor wrongfully threatened to expel him from the cars of defendant, and for that purpose laid violent hands upon him, and thereby ■compelled the plaintiff, who was in feeble health at the time, to pay fare a second time, the plaintiff having bought and paid for a ticket, which the conductor refused to take. The ticket held by the plaintiff, when purchased by him at Mantón, was represented to him by the agent as good to Traverse City. Traverse City is located on one of defend ant’s branch lines, connecting with the main line at Walton junction, which is situate about nine miles north of Mantón; and it was between these two stations that the alleged altercation occurred. If what the plaintiff states is true, the •defendant owed him a ride on its train to Walton junction; and if what the defendant’s conductor testifies to is true, the ticket held by the plaintiff did not furnish the proper evidence of the plaintiff’s right to ride between the points named. Counsel for defendant claims that, as between the conductor and the passenger, the former can only accept a ticket from the latter in payment of fare when it contains upon its face the marks, words, letters, and figures required by the rules of the company to be placed thereon, showing the holder’s right to ride, and that what appears upon the face of the ■ticket is conclusive between them; that the conductor has the right to act accordingly. It was upon this theory the ■cause was tried and submitted to the jury. The ticket purchased was part of an excursion ticket, good when first issued for a ride from Sturgis to Traverse City. After the plaintiff had purchased and paid for the ticket, he ■observed it did not look like the tickets he had been accustomed to purchase, and thereupon he returned to the ticket ■office, and asked the agent if it was good, and was informed by the agent it was. He then entered the defendant’s passenger coach, and the train moved on for Walton junction. When the conductor asked for the plaintiff’s fare, he delivered to him the ticket he had thus purchased. The conductor told plaintiff he could not receive it for his fare, whereupon plaintiff informed the conductor that he bought the ticket at Mantón of the company’s agent, and was informed by him it was good; that he paid the agent for the ticket, and he should not pay his fare again. The conductor then laid his hand upon plaintiff’s shoulder, and rang the bell, and told the plaintiff, unless he paid the fare, which was 25 cents, he would put the plaintiff off the train. The plaintiff then under protest paid the fare demanded of him. These facts appear by the record, and are not disputed. Whether or not the ticket had been canceled between Grand Rapids and Walton junction by conductor’s marks was a fact contested before the jury, and upon this subject the court charged the jury: “ If the ticket had been canceled between those points, then upon its face it was an invalid ticket, and, when the fact was called to the attention of the plaintiff, he had no longer a right to insist upon being transferred over this line upon that ticket.” And further charged: “If it was not valid upon its face, but had been canceled between those points, the plaintiff cannot recover in this action.” In response to a question from a juror, the court further charged as follows: “ I said to you that if the ticket, upon its face, appeared to-be a genuine ticket, entitling the party to ride between the stations named, Mantón and. Walton junction, and had no evidence of its infirmity, or of having been used before, and the plaintiff purchased it in good faith, and believed that it entitled him to a ride between the stations, then it should be treated as such, and the party would have a right to refuse to leave the car; but that if the ticket was punched, indicating to the conductor by the punch-mark that it had been used between Grand Rapids and Walton junction, that would be evidence of an infirmity of the ticket, and the plaintiff would not be entitled to insist upon that ticket being received.” These charges, with the exception of that wherein the court says the plaintiff would have a right to refuse to leave the cars, are erroneous. There seems to be no question but that the plaintiff purchased his ticket of an agent of the company, who had the right to sell the same and receive the plaintiff’s money therefor ; that the ticket covered the distance between the two- stations, and was purchased by the plaintiff in perfect good faith; that the ticket was genuine, and was issued by the company, and one which its agents had the right to sell to passengers. The plaintiff had a right to rely upon the statements of the agent that it was good, and entitled him to a ride between the two stations. It was a contract for a ride between the two stations, that the defendant’s agent had a right to make, and did make, with the plaintiff. The ticket given by the agent to the plaintiff was the evidence agreed,upon by the parties, by which the defendant should thereafter recognize the rights of plaintiff in his contract; and neither the company, nor any of its agents, could thereafter be permitted to say the ticket was not such evidence, and conclusive upon the subject. Passengers are not interested in the internal affairs of the companies whose coaches they fide in, nor are they required to know the rules and regulations made by the directors of a company for the control of the action of its agents and the management of its affairs. When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures, or other marks. All sorts of people travel upon the cars; and the regulations and management of the company’s business and trains which would not protect the educated and uneducated, the wise and the ignorant, alike, would be unreasonable' indeed. On the undisputed facts in this case, I think the plaintiff was entitled to go to Walton junction upon the ticket he presented to the conductor. Maroney v. Old Colony & N. Ry. Co., 106 Mass. 153; Murdock v. Boston & A. R. R. Co., 137 Id. 293. See this case in 53 Mich. 118. In this case the trial was concluded on March 14, 1885. The bill of exceptions was settled May 26, 1886, and errors were assigned in this Court on May 31 following. On the fourteenth of May, 1885, Act No. 101, Laws of ] 885, was approved, whereby a party aggrieved by the charge of the circuit judge may assign errors upon such charge in this Court the same as if exceptions had been taken thereto at the circuit. I think errors in this case were properly assigned to the charge. The statute applies to a question of practice only. It is a remedial statute, and was intended to apply to cases then pending as well as to those thereafter to be commenced. There is no discussion of the other questions raised required for a proper disposition of the case. The judgment must be reversed, and a new trial granted. Campbell, C. J., and Morse, J., concurred. Champlin, J., did not sit. See Hufford v. Grand Rapids & Indiana Ry. Co., 58 Mich. 118. See Just v. Porter, ante, 565.

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Sherwood, J. On the first day of April, 1873, the Newaygo Company, then a copartnership, owned blocks A and B, in the village of Newaygo, and the. canal and water-power thereon, formed by damming the Muskegon river at that point. The Newaygo Company and its assigns, at that time and ever since, have been using the water-power for the manufacture of lumber and for other purposes, the waterpower being one of the largest in the State, and the company owning it has done a constantly increasing business. At the time mentioned, the Grand Bapids, Newaygo & Lake Shore Bailroad was in operation to the village of Newaygo, and the railroad company, desiring to extend its road to the village of White Cloud, and the route selected passing over blocks A and B belonging to the Newaygo Company, they, for a nominal sum, sold and conveyed to the railroad company a right of way across said blocks for the use of its railroad. The deed is dated the first day of April, 1873. That portion of the deed needing special consideration in the case is the description and reservation, reading as follows: “A right of way in and over a certain strip of land situate, lying, and being in the village and county of Newaygo, Michigan, and designated as a strip of land out of block * A/ in said village, 60 feet wide, and lying 30 feet in width upon each side of, and at right angles with, the center line of said company’s railroad, as staked out by John Manly,, engineer, over said block ‘ A,’ and commencing at a point, on the southern boundary of said block ‘A,’ 35 feet east of the range line between townships twelve (12) north, range twelve (12) west, and twelve (12) north, of range thirteen (13) west, in said county, and running thence northerly, on a curve of 717 feet radius, to the bank of the Muskegon river. “ That portion of said land lying between the river and the mill-race, over which said track passes, is reserved for the free and uninterrupted use of said Newaygo Company, their-heirs or assigns, forever. “ The meaning is that the road shall have the privilege to-build a bridge, or approach to a bridge, over the portion of said land above reserved, at such an elevation as not to interfere with the usual business of the said Newaygo Company. Said railroad company to have the right, at any time, to use the ground here reserved for the purpose of constructing said bridge, or approach thereto, or at any time to repair and maintain said bridge, approach, and railroad. “ For the said party of the second part, and their assigns and their servants and agents, to build, construct, and maintain a railroad in and over said strip of land, and at all times freely to pass and repass by themselves, their servants, agents, and employés, with their engines, cars, horses, cattle, carts, wagons, and other vehicles, and to transport freight and passengers, and to do all other things properly connected with or incident to the location, building, maintaining, and running of the said road, and to use the earth and other materials within said strip of land for that purpose.” On taking possession of the Tight of way thus granted, the railroad company constructed its road over said block A, and built a bridge over the canal for its track, keeping within the limitations of the deed; and the complainant’s bill of complaint alleges that the Grand Rapids, Newaygo & Lake Shore-Railroad Company so used said right of way and said bridge, so constructed, until it transferred its road and other property to, and became consolidated with, the Chicago & West Michigan Railway Company, the defendant in this suit. The bill further avers that said defendant proposes to erect a new bridge over said canal, in place of tbe first one, constructed of iron; that defendant proposes to erect, for the support of the same, two large stone piers placed in the canal in such manner as to greatly impede the flow of water to complainant’s mills, thereby greatly injuring the complainant; that it would decrease the capacity of the canal about one-third, by leaving less than two-thirds pf the free space therein used for the passage of water and logs to the complainant’s mills. The bill of complaint further avers— “ That finally, and on the morning of Sunday, the twenty-fourth day of January, 1886, said railway company sent a force of from 75 to 100 men to Newaygo, and’ took forcible possession of the property of your orator, and imprisoned its night-watchman by it employed, and thus prevented an alarm being given; that they took possession of the saw-mill, planing-mill, and other factories belonging to your orator, and, blocking the large wheel of the planing-mill, opened the gates of same, took out the slash-boards from the waste-weir in the saw-mill, and endeavored to raise the gates in said mill; also went up to the head-gates of the canal, and, using lumber belonging to your orator, and large quantities of hay brought by themselves for that purpose, shut the water out of said canal, greatly endangering the same, and freezing up some of the wheels in said mill, and also the pump used for fire protection, thus endangering the entire property of your orator to destruction by fire; that, during this time, others, acting under like orders, commenced shoveling earth out of coffer-dams into the canal to prepare a foundation for said piers; that your orator, acting through its proper officers, has forbidden the prosecution of said work, and notified said men that it would defend its legal rights in the premises, and finally succeeded in securing a cessation of said work after one pile had been driven.” At this time the railway company had sent a force of men with a pile-driver to drive piles for a foundation for said proposed piers in said canal. Complainant further says: “ Your orator is informed, through its said president and other officers, that said railway company has only suspended work to arrange for a more powerful effort to renew and complete the same, and that it threatens to send a large force of men to Newaygo, and drive said piles in said canal, and erect said piers therein, in spite of all opposition; that, if said railway company is allowed to drive said piles in said canal, and erect said piers therein, your orator will sustain irreparable damage and loss, by being deprived of the free and unobstructed use of said canal for the flowage of water and floatage of saw-logs therein to its said mills and factories, and that the damages thus sustained will he incapable of full ascertainment in a suit at law, and that the wrong done will amount to a continuing trespass upon the rights of your orator; and that said Chicago & West Michigan Railway Company has no legal or equitable right to commit such acts, and thus injure and obstruct the business of your orator.” The bill prays that— “The Chicago & West Michigan Railway Company, its officers, agents, and employés, may be restrained by an injunction issuing'out of this court, and to it and them directed, from driving piles in the said canal so owned by your orator, as aforesaid, and from constructing piers for the approach to its said river bridge in said canal, or upon said piles, and from in any manner attempting so to do, and from in any manner obstructing the free and uninterrupted flow of water in said canal at the point where its said right of way and bridge now crosses the same, and from injuring the banks of said canal on said right of way by excavations therein, — all until the further order of this court, — and that said preliminary injunction may he made perpetual on the final hearing of this case, and that your orator may have such other or such further relief in the premises as the nature of its case may require, and as shall be agreeable to equity and good conscience.” The defendant filed its answer, in which most of the material facts are admitted, and justification thereof is claimed under the deed from the Newaygo Company. It claims it had the right to construct the bridge in the manner proposed and attempted. The answer also claims and denies— “ That the right reserved by said deeds of right of way to the said Newaygo Company, which right was a mere right of passage over said strip of ground, has passed to the said complainant, for the reason that, by its terms, it is expressly limited to the usual and ordinary business of the Newaygo Company as it existed at the time said right of way was granted, and for the reason that such reserved right wholly ceased and terminated when the said Newaygo Company ceased to do business as such; and the said defendant denies that the structure which it proposes and has planned to build across ■said canal and said strip of ground will constitute any infringement of the rights reserved under said deeds of right of way, even if they are now in full force and have passed to said complainant, or any infringement of the use of said canal or the banks, under said deeds.” Defendant avers that the stone piers project into the canal, •one not exceeding three and one-half feet, and the other not more than three feet, and that the water-way in the canal, if said piers were completed, would not be obstructed by more •than the projection of one of them. The defendant admits that it sent a force of men to drive piles for a foundation for the piers in the edge of the canal, and would have continued the construction had it not been •enjoined, believing it had the right so to do. “And the defendant, further answering, denies that said ■complainant will sustain irreparable or any damage or loss by reason of the construction of said piers in said canal, either in diminution of water or in the use of the same for floatage of logs to its said mill; and avers that no damage whatever, •of any kind or nature, will be sustained by said complainant by reason of the construction of the piers proposed to be built by said defendant; and denies that any wrong will be done by this defendant amounting to a trespass upon the .rights of the said complainant; and avers that a necessity does exist for the construction of said piers in said canal.” The defendant also claims and insists that the complainant has not made out such a case as entitles it to any equitable relief, - and prays the benefit of a demurrer. The cause was heard, on pleadings and proofs, before Judge Fuller, who made a decree in accordance with the prayer of the bill. We think the bill states grounds for equitable relief, and is not subject to the demurrer claimed. The grounds stated are also sufficiently specific. It states that the complainant owns the water-power and canal, and that the present flow of water is no more than sufficient to carry the various mills and machinery now dependent upon it for propelling power; that the defendant, without right or authority, threatens, and has already commenced, to place two stone piers, large enough to support an iron bridge to be used for railroad purposes, extending out into the canal on either sido, and diagonally across the same, 10 feet, and, for the purpose of erecting said piers and building said bridge, has taken forcible and violent possession of the complainant’s property, deprived it of the use of its water-power and mills, and threatens to continue such possession until the bridge is completed; and that the complainant will thereby be deprived of the use of about one-third of the water-power and way, and the stability of the embankment of the entire canal will be endangered. • It would seem that such a state of facts ought to entitle the complainant to the equitable consideration of the court, and to that preventive remedy which a court of equity alone can grant. Substantially such is the case made by the bill; and, if these facts are true, a more flagrant violation of private rights, committed in open defiance of law and against the public peace, has seldom been brought to our attention in an equity pleading. We now come to the merits of the case as presented by the record. > The first important question to be considered is, what is the true construction of the deeds under which the defendant claims the right of way over the premises of the complainant? If we examine these deeds under the rule recognized and approved by this Court in McConnell v. Rathbun, 46 Mich. 303, that “ all grants must be construed reasonably, and in the light of surrounding circumstances,” we shall, I apprehend, have but little difficulty. The surroundings of the parties, and their expectations in regard to the future development and increase of business, and the probable necessity for an increase of power, which could only be obtained by the widening of the canal, and everything relating to the full enjoyment of the water-power to its largest extent, must have been contemplated and in the minds of the parties interested at the time the right of way was conveyed to the Grand Rapids, Newaygo & Lake Shore Railroad Company, in 1873. The Newaygo Company then owned in fee all the property necessary to enable it to develop the power to its fullest extent. It owned the entire power, and exclusive right of boomage and fio wage along the banks of the Muskegon river for six miles up the stream, and the property was. “ bought for the purpose [as stated by one of complainant’s, witnesses] of the manufacturing business, with the intention of increasing it as fast and as much as the power of the river would warrant.” Newaygo county, at the time the right of way for the railroad was obtained, contained a large amount of valuable timber of nearly every variety, and of the choicest kinds, which, with the advantage of the almost unequaled water-power on the Muskegon to aid in its manufacture, made the property and water-right of the Newaygo Company, now in question,, of the utmost importance and greatest value, not only to the owners, but to the railroad company itself, inasmuch as the early business of the road was very largely supplied from the lumber and other articles manufactured at the mills of the-complainant. These are some of the circumstances surrounding the parties at the time the conveyances of the right of way claimed by the defendant were made; and we do not think it was in the mind of either of them, or the agents who transacted the business for them, nor the intention of any of them, that the. water-rights of the complainant, or’ anything appurtenant thereto, which the complainant, or, rather, the Newaygo Company, believed to be necessary to the complete enjoyment of the fullest development possible of the said water-power, was to be surrendered to the use of the railroad company. The question then arises, did the Newaygo Company make any such surrender in the conveyances made? Let us see for a moment what is the situation of the premises in question. The Muskegon river is a large, rapid stream, passing through Newaygo village nearly east and west. It runs nearly in a straight line the length of the canal, starting at the dam across the river. The canal runs from the dam parallel with the river below about 500 feet. The distance between the canal and the water in the river at the bottom of the embankment is about 70 feet. The embankment is about 30 feet wide on the top, and the north side of the embankment extends to the water in the river. The top of the embankment is, and always has been, used as a road. It is about 10 feet wide, and then begins to slope down on either side. This road or track is used by the company in repairing the embankment and the guard-gates and other works at the dam, and there is no other practicable way of reaching these gates and works. At this point the river runs west, and the right of way is located about one-third of the length of the canal west of the dam. The land between the canal and river is a made bank, and needs to be looked after frequently. Supporting an immense pressure from the water, its construction and usefulness can only be maintained by the most thorough and substantial work. The canal is used, not only for conducting the waters from the river to the company’s machinery, but also for the purpose of floating logs and timber from the river to- complainant’s mills. From ten to twelve million feet now pass over this water-way annually in conducting cbmplainant’s business. It also appears from the testimony that the most feasible and practicable way of widening tbe canal is by extending it south. These are some of the surroundings of the property in question, which must be taken into consideration in construing these conveyances, by which it is claimed this embankment, or middle ground, if it may be so called, was given up to the use and control of the railroad company, to such extent as its interests should from time to time require, by the old Newaygo Company. When these surroundings are properly considered, it is impossible, it seems to us, to come to the conclusion that any such rights were intended to be included in the right of way conveyed. It is clear that the free, undisturbed, and exclusive use of the middle ground was as necessary and essential to the best interests of the Newaygo Company as was such use of the canal itself, and that the proper construction of the conveyances has been given by counsel for complainant; that, in whatever manner the defendant makes use of its right of way, it must in no way interfere with the complainant’s free, unobstructed, and exclusive use of both the canal and the land lying between it and the river, except for the two purposes mentioned, viz.: 1. For the purpose of constructing a bridge, and approach thereto, of sufficient height over the canal and middle ground so as not to interfere with the complainant’s business. 2. For the purpose of repairing such bridge, approach, and railroad. —And, when so used by the defendant, it must be without injury to the property, rights, and business of the complainant. We think the manner of constructing the first bridge, and the placing of ..the piers therefor, — the one on the north side in the river, and the other, on the south side, beyond the south bank of the canal, — and the fact that two members of the old Newaygo Company, viz., Mr. AVood and Mr. Lawrence, refused to make the conveyance of the right of way until the location of these two piers was made and established as intended by the parties in the conveyance, and in which locations they have ever since remained until attempted to be changed by the present owner, very clearly indicate that the construction claimed by the defendant’s counsel is not in accordance with the original purpose of the parties to the deed, nor with the construction they gave it. We think the defendant had no legal ground whatever, without the consent of the complainant, to place the piers for the new bridge where the attempt was made to locate them. It was of no consequence whether the complainant suffered damage or not by the proposed erections in the canal and middle ground, so far as the complainant’s rights are concerned. It was the right and privilege of the complainant to have the use of the canal and its embankments free and unobstructed by the defendant’s bridge; and the act of the latter, in its attempt to infringe that right, was nothing less than a willful trespass on the part of those participating, and they were properly restrained from proceeding further by the court. It is unnecessary for complainant to invoke the aid of section 3323 of Howell’s Statutes to secure its rights in this case. The complainant’s title to the premises is sufficient for that purpose. We do not think, upon this record, that the defendant had any consent, legal or otherwise, from the complainant to do what was attempted by its agents and employés. The rights reserved to the Newaygo Company from the right of way conveyed by the deeds were not limited to that company’s use. That company was no more than a parttiership composed of three individuals; but it was clearly intended, we think, and it is so stated in the conveyances, that they extended to their heirs and assigns, and complainant is now well entitled to use and enjoy the same to the same extent that the old Newaygo Company could had it not conveyed the property. We think it fully appears from the record in this case that the injury threatened, attempted, and restrained is of such a nature as to materially lessen the enjoyment of the property and rights of the complainant, and in such cases there can be no question but that the grievance becomes one of equitable cognizance, and the duty of courts is plain. White v. Forbes, Walk. Ch. 113. The encroachment complained. of by complainant, if allowed to continue, would eventually ripen into a title, and can only in this way be prevented without the necessity of bringing a multiplicity of suits (1 High, Inj. § 702); and as to damage being irreparable in such cases, see Washb. Easem. 243. It is unnecessary to continue the discussion of the case further. Suffice it to say, it is one of those cases where no technical rules of either pleading or construction can be properly applied. Technicalities in equity may be resorted to when in no other way can the just rights of the parties be protected and preserved, but they are intolerable in any other case, and should not be allowed to control. After a careful examination of the questions involved, we are of the opinion that the decree of the circuit judge is correct, and should be affirmed. Champlin and Morse, JJ., concurred.

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Sher'wood, J. These complainants were all defendants in-separate suits against each in ejectment, wherein the plaintiff*' was the defendant, Gertrude Smith, and the object of the bill-in this case is to enjoin Mrs. Smith from prosecuting those three ejectment suits, and to quiet the title to the property therein in dispute. The defendant demurred to the complainants’ bill, alleging the following grounds therefor: “ That It appears by the said bill that the same is exhibited by the complainant Isaac hi. Jenness, and the several other persons therein named as complainants thereto, for distinct, matters and causes, in several whereof, as appears by the sail bill, the said complainants are not in any manner in common or jointly interested or concerned, and that the bill is multifarious, and that the said complainants have not, in and-by their said bill, made or stated such a case as entitles them in a court of equity to any relief from or against this defendant touching the matters contained in said bill, or any of such, matters.” The cause was heard before Judge Stickney in the Lapeer •circuit, where the demurrer was sustained, and the bill dismissed. The allegations of> the bill are substantially the same as those in Winslow v. Jenness, ante, 84, with the following additions, viz.: All the lands referred to in Winslow v. Jenness were sold prior to January 3, 1878. Up to that time Allen Fish and I. N. Jenness, as survivors of I. N. Jenness & Co., 'had continued the business for the purpose of closing it up, ■believing that in so doing they could best subserve the interests of all concerned. At that date Jenness learned for the ■first time that Allen and Henry Fish had mortgaged their two-thirds interest in the partnership real estate of I. N. ■Jenness & Co. in 1871 for $40,000, which mortgage had never been recorded, and that there was still due on said mortgage about $10,000. There was also due to John L. Woods, on a ■mortgage given by A. and H. Fish on their interest in the same lands, $25,000; so that the interest of A. and H. Fish in this partnership real estate was incumbered by mortgages to the amount of $35,000. At this time the firm of 1. N. Jenness & Co. owed I. N. ■Jenness $20,000, and other unsecured creditors $21,000, and the firm of A. & H. Fish were indebted to I. N. Jenness & ■Co. $83,000, and were insolvent. It was agreed that all the -assets of the firm should be conveyed to Jenness, who, in •consideration therefor, agreed to pay the two mortgages of $35,000, to pay all the indebtedness of I. N. Jenness & Co., and to release all his claims against A. & H. Fish. This agreement was carried out; and all the property turned over to ■Jenness did not exceed in value 75 per cent, of the indebtedness which Jenness agreed to pay, and did pay. To pay this indebtedness Jenness conveyed the bulk of the property transferred to him to John L. Woods, who controlled the two mortgages. He used $1,000 of his own means, and mortgaged his homestead for $12,000. These additional allegations do not change, in any essential particular, the main features of the ease. The same rule which prevailed in Winslow v. Jenness will govern the present case, and determine the result. It is unnecessary to discuss them anew here. The decree at the circuit must be affirmed, The other Justices concurred.

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Champlin, J. Respondent was arrested on a warrant •charging him with selling and furnishing— “ To Marshall Gilland a certain quantity, to wit, two glasses,•of fermented liquor, to wit, cider, as a beverage, without first having executed and delivered to the county treasurer of Allegan county the bond required by section thirteen (13) of Act No. 259 of the Public Acts of Michigan for the year 1881, or the bond required by section nine of said act; he, the said Albert R. Foster, being then and there a person whose business consisted in part of the sale of drugs and medicines, and said liquors not being then and there sold for •mechanical, medicinal, or sacramental purposes.” He was convicted before the justice, and on appeal to the circuit court he was again convicted, and has brought the case here upon exceptions before judgment. He claims that section 13 does not include the sale of fermented cider; that the section does not make it unlawful to •sell or furnish intoxicating liquors, that is, it does not use the word “ intoxicating,” and insists that it is purposely omitted; that, if it covers “hard” cider, there is no reason why it would not cover all classes of liquors that ferment, such as mead, metheglin, and sap from the maple or birch. We do not agree with respondent’s counsel in the views urged by him. Considering the subject-matter and general •scope and purpose of the whole act, and the evil sought to be remedied, we have no hesitation in saying that the sale of fermented cider by a druggist, to be used as a beverage, is-unlawful, as charged in the complaint and warrant in this case. We find no error, and the circuit court is advised to proceed to judgment. The other Justices concurred.

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Campbell, C. J. Complainant filed his bill to set aside a. ditch assessment, the amount of which was deposited under protest, which defendant Slaght was attempting to enforce under a tax roll, based on an assessment purporting to be made by the other defendant as township drain commissioner. It appears by the bill that the application for the work in controversy was made to the drain commissioners of the townships of Mundy and Gaines jointly; that the work was. prosecuted under their joint supervision; and that the cost of the drain in each township was not charged on the lands in that township, but that complainant is charged with more or less of the cost in Gaines, in which none of his land is situated. The defendants demurred generally for want of equity, and specially for want of parties named. The court below dismissed the bill. As the assessment was put upon the roll of Mundy, and unless paid would have resulted in a cloud on complainant’s title, the case is properly brought, and could not very well have been brought until the proceedings were put in such a shape as to endanger his title. So much of the demurrer as goes tó want of parties is a speaking demurrer, not supported by the bill. That does not show any interest in the persons named as holders of ditch-warrants. Had it done so, there is some doubt how far they •could be treated as necessary defendants as interested in a fund not yet collected or apportioned to them. See Palmer v. Rich, 12 Mich. 414. But it is enough now to say they have no apparent interest on the record. There can be no doubt of the insufficiency of the pr >ceedings. There is no statute which allows joint action by different township commissioners, and such action extending over more than one towuship is not legal. The demurrer must be overruled. We can see nothing which can be gained by further defense; and, as it is itnpos-, sible to maintain the assessment, we shall reverse the decree, and order a decree for complainant as prayed, with costs of both courts. 1 lie record will be remanded for the entry of the proper order making the decree of this Court the decree of the circuit court. The other Justices concurred. See Emerson v. Township of Walker, 63 Mich. 483; Barker v. Township of Vernon, Id. 516.

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Campbell, O. J. This bill, which was filed in February, 1886, seeks to restrain defendant Gertrude Smith from prosecuting 21 ejectment suits, and to compel her to convey to the several complainants an undivided third interest each to the-property involved in the suit in which he or she is interested. There are no joint interests in complainants. Each claim® title to separate land, in which Mrs. Smith sets np her own title to an undivided third. Defendant Gertrude Smith ■demurred for multifariousness in the misjoinder of unconnected causes of action, and the demurrer was sustained, and the bill dismissed. Oomplainants appeal. The case contains a recital of several matters, giving the history of various partnership matters, which are detailed in •a bill formerly filed by defendant Isaac N. Jenness against ¡his co-defendant, Gertrude Smith, to obtain the same relief which is sought here. Jenness v. Smith, 58 Mich. 280. The •present record does not entirely conform to that. But in •order to try the sufficiency of the present bill on the one •question of multifariousness, it will only be necessary to give .an outline of the controversy, giving complainants the .advantage of all the ambiguities. The case, thus abridged, is this: Henry Fish, father of Gertrude Smith, died intestate in May, 1876, leaving her his heir at law, 17 years of age. Before his death, he, and defendant Isaac N. Jenness, and Allen Fish (since deceased) were owners of considerable tracts of land in Michigan, including the lands here in controversy, which are in Lapeer .county. They were all in partnership, under the name of I. N. Jenness & Co., and these lands, although held by tenancy dn common, are claimed to have been partnership property. .After Henry Fish’s death, it is claimed it became necessary to continue the business and manufacture the pine left, so as to close matters out, and, after using such personal assets as •could be spared without stopping the business, the debts •could not be paid off without selling lands. ■ Allen Fish became defendant. Gertrude’s guardian, and, -supposing sales could not be made complete without authority to act for her, applied to the circuit court for the county of St. Clair, and obtained a decree, the substance of which is not .set out, but which, it was assumed, gave him power to act for her. Had the case been otherwise sufficient, it would have been necessary to show just what those proceedings were. After that decree, Allen Fish, for himself and also as guardian, joined in warranty deeds with Isaac N. Jenness and the widow of Henry Fish, to several parties, of the various parcels of land involved in this suit, including the complainants- or their respective grantors, for prices set forth in the bill and the consideration so received was used for partnership purposes. These conveyances were not made at auction or at the same time, but at private sale, and from time to time, during the year 1877. It does not appear when the contracts were made, and it is not averred that the deeds referred to-the lands as -partnership property, or that they were so considered by the purchasers. All that is shown as to the partnership is that the money was used for its benefit. One of' the conveyances is shown to have been made in carrying out an individual land contract executed by the three partners-during Henry Fish’s life-time. This piece of land is averred to have been conveyed for a valuable consideration, the-amount of which does not appear, by Allen Fish, for himself' and as guardian, with Mrs. Fish, to Jenness, who conveyed the land to Charles Bashaw, a complainant, and holder of the-original contract. It is assumed, and is no doubt true, that Fish’s deeds as guardian were void, the sales never having been reported or confirmed. Whether any lands remained unsold does not appear, but is not important now. Gertrude Smith has brought ejectment for her interest as heir at law, each complainant being sued separately for his or her several parcels. The ease, then, is that of a person claiming an undivided interest, which, so far as she is concerned, has never been parted with, who is sued in equity to compel her to surrender and release it to the several grantees of her co-tenants, on the assumption that they owned it all and conveyed it all equitably. The guardian’s transfers are not relied upon, and could not be relied upon, as having any part in the controversy. No equity could arise out of them. They were nullities, or else the bdl had no basis. The legal issue is, therefore, a simple one. Bach of these complainants claims under a purchase which was not made under any legal proceedings, which was separate in time and in consideration from every other sale. The only alleged common equity is that the conveyances from Jenness and Allen F sh, which in law conveyed two-thirds, should be held in equity as conveying the entirety. The bill does not even show a simultaneous origin, or a common fraud or contrivance by which these complainants were deceived. All that can be made out is that they bought of the same parties independently, and their title has failed in the same way; and no fraud or conduct of defendant in any way contributed to their difficulty. This attempt to obtain relief by joint bill goes beyond the broadest doctrine which has been formulated anywhere. There is no common wrong and no privity among them. Their grievances are similar, and that is all that can be said in their favor. The general rule of equity is that every several grievance-must be redressed by a several proceeding. The only recognized exceptions to it (and these are considerably qualified) are instances where there is a single right asserted on one-side which affects all the parties on the otheT side in the same way, or a single wrong which falls on them all simultaneously and together. The instances which are most familiar are rights in common which are resisted by the owner of the estate on which it is charged, tax-rolls assessing all parties on an equal ratio, frauds by trustees affecting all the cestuis que trustent, and the like. Here the grievances are not separate and similar, but single and uniformly injurious. And it has been held in this Court, as well as eh ewhere, that, if there is any distinction in the proportion or character .of the several grievances, there can be no joinder. Kerr v. Lansing, 17 Mich. 34. Where the cause of grievance does not arise out of the same wrong, affecting all at once as well as similarly, there is no foundation for any such joinder. Our own precedents have settled the doctrine sufficiently. In the case of Walsh v. Varney, 38 Mich. 73, each of several complainants had purchased separate parcels under partition proceedings, which were valid as against all who were before the court, but which left out some of the tenants in common. These complainants joined in a bill to restrain ejectment suits brought by the heirs not concluded by the partition, and sought further to have the partition decree opened and extended so as to bind them. But it was held complainants had n<5 common grievance entitling them to join, and also that they had no rights beyond their purchase. This last point bears on another difficulty in this case which is distinct from the question of multifariousness. As the bill states their case, they bought a title in which defendant purported to have an interest in her own right, and which failed apparently from a defect in the guardian’s power, of which, as that decision holds, they had notice. The bill does not indicate that they bought in reliance on the right of Fish and Jenness to convey the whole. In Bigelow v. Booth, 39 Mich. 622, a bill was filed by complainants to redeem, basing their right on a joint interest acquired under execution. It was held that, as this joint title failed, the bill could not stand to help separate interests derived otherwise. That case, however, is not one where the particular point raised here is very clearly presented, although a bill to redeem usually includes all parties to be affected. In Woodruff v. Young, 43 Mich. 548, a bill filed against three defendants for fraud in hindering complainant from getting the settlement of an estate in which they were all concerned, and also for frauds committed by them separately in various dealings arising out of the same family relationship, but not connected with the estate, was held multifarious, because the frauds were distinct. In Brunner v. Bay City, 46 Mich. 236, it was held that parties whose lots had been sold under the same illegal assessment, and bid in by the city, had no longer any grievance for which they could join in a bill, and that each lot-owner had merely the several right to pursue the city as he would any other person having a deed which would be a cloud on his title to the separate lot. That case cannot be distinguished in principle from this. And this was on the ground that thenceforward any claim or assertion by the city against one lot could in no way affect any other lot, but must be prosecuted and defended separately. It cannot help or hinder any one of these complainants to have defendant’s title made out or defeated against any of the rest. Judgment in one of the ejectment suits could not be shown in any -of the others, and could not affect them. It is hardly necessary to increase citations, but they are not difficult to find. In Jones v. Garcia del Rio, 1 Turn. & R. 297, where several persons had been induced to buy scrip in the same loan by a fraud affecting them all in the same way, but by separate purchases, Lord Eldon dismissed their bill on this sole ground. He said that the plaintiffs, if they had any •demand at all, had each a demand at law, and each a several demand in equity; that they could not file a bill on behalf of themselves and the other holders of scrip; and, as they were unable to do that, they could not, having three distinct demands, file one bill; and, upon that ground alone, his lord•ship, without again adverting to the question of public pol icy (which had been raised and discussed), dissolved the injunction. This decision was in 1823. In 1834 the United States Supreme Court decided the case of Yeaton v. Lenox, 8 Pet. 123, on the same principle. There a considerable number of underwriters, taking risks on the same property and voyage, but severally, and not jointly, had paid their insurances to the same bank as holder, on the understanding that the money should be refunded if it turned out they were not liable. This having been ascertained, they joined in a bill against the trustees of the bank, which was in liquidation, its charter having expired, to recover back their funds. Chief Justice Marshall disposed of their claim very briefly, refusing to pass on the equities, which were controverted. He said: “The plaintiffs who unife in this suit claim the return of money paid by them severally on distinct promissory notes. They are several contracts, having no connection with each other. These parties cannot, we think, join their claims in the same bill.” The principle is also recognized in Story, Eq. Pl. § 279, and Daniell, Ch. Pr. 395. It is by no means clear from the allegations in the bill that, the grievances or claims of these complainants are entirely similar in their equities. But this we do not think it necessary to discuss. Their claims, good or bad, are entirely separate, and there is no common grievance. The decree should be affirmed, with costs. The other Justices concurred. “It is a well-settled doctrine that parties purchasing titles under judicial sales purchase just what can lawfully be sold, neither more jnor less, and have no further rights.” Walsh v. Varney, 38 Mich. 76.

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Per Curiam. Certain electors, dissatisfied with the action of the legislature, as evidenced by the provisions of Act No. 304, Pub. Acts 1915 (Senate Enrolled Act No. 93) (1 Comp. Laws 1915, § 9388), seek to invoke a referendum pursuant to section 1, art. 5, of the Constitution, as amended in 1913. Petitions for such referendum having been filed with the secretary of State, that officer, on August 24, 1915, made a proclamation, which, after reciting certain facts as being disclosed by said petitions, continues as follows: “Now, therefore, it is hereby officially determined and declared by me, by virtue of the power in me vested, that the petitions aforesaid have been signed by a sufficient number of qualified electors of this State to authorize and require the submission of said Senate Enrolled Act No. 93 to a vote of the electors of this State at the next succeeding general election for approval or rejection, and that said Senate Enrolled Act No. 93 shall not go into effect unless and until it is approved by a majority of the qualified voters of the State of Michigan voting thereon at said election.” Thereaftei relators filed in this court their petition, which concludes with this declaration and prayer: “The purpose of this petition and of the order to show cause and writ of mandamus being to secure the printing on the official ballot for the November, 1916, general election of only a legally and constitutionally submitted referendum upon said Act No. 304 of the Public Acts of 1915, and such referendum as is qualified and entitled to appear on such ballot by reason of having met and fulfilled the requirements of the Constitution of this State, and that upon such showing of cause and hearing thereon an order may be entered requiring the observance of said provisions of the Constitution in the submission of such referendum and the printing of such ballot: “(50) Your petitioners therefore pray that a writ of mandamus may issue to Coleman C. Vaughan, secretary of State of the State of Michigan, commanding him: “ (A) To recount and recanvass on said referendum petitions filed from the counties of Kent and Wayne, only those signatures of signers thereof who added to their respective signatures their place of residence, street and number in cities having street numbers, and their election precinct. “(B) To recount and recanvass on said referendum petition only these sections which bear the name of the city or county in which it was circulated. “(C) To recount and recanvass on said referendum petition only the signatures of such qualified electors of the city or county where such section was circulated. “(D) To recount and recanvass only those sections which have attached thereto an affidavit of the circulator or solicitor who circulated the said section, which complies with the requirements and provisions of section 1 of article 5 of the Constitution of this State. “(E) To recount and recanvass only those sections of said referendum petition which were filed with the clerk of the county in which it was circulated, and to count and canvass only the names on such section circulated in the counties of Kent and Wayne which were filed at the same time as provided in section 1 of article 5 of the Constitution. “(F) To reject and throw out of the said referendum petition all of the said sections thereof filed from the counties of Kent and Wayne which were returned to said counties for correction as set forth herein. “(G) To reject and throw out of the said referendum petition all and each and every section thereof filed from the counties of Wayne and Kent and shown to be defective and illegal in this petition. “(H) That such other and further order may be made in the premises as justice may require.” Relators’ complaints are addressed to matters appearing upon the face of the petitions, showing, it is alleged, failure to follow the constitutional directions and to matters not appearing upon the face of the petitions, but set up by relators, relating, mostly, to the manner in which the petitions in Kent and Wayne counties were procured, signed, verified, and amended before they were filed with respondent. An order to show cause having been granted, respondent answered relators’ petition, and relators have now applied for an order framing certain issues of fact, 24 in number, the forms of which are proposed. Respondent, by the attorney general, has filed objections to the framing of issues, saying: “I. The case presented by relators’ petition and the answer of respondent thereto is not of such character as to warrant the framing of issues of fact as prayed for in relators’ motion. “II. Conceding, for the purposes of this motion, and for no other purpose, that the issues of fact proposed by relators in their said motion were respectively answered upon submission favorably to relators’ contention, relators would not be entitled to the relief, or any part thereof, prayed for in their said petition. “HI. It appears from said petition by relators that the acts of said respondent sought to be reviewed, and those which this respondent is sought to be compelled to perform under the prayer in said petition and set forth in the order to show cause heretofore issued herein, are acts which this respondent, who is a constitutional officer, is required to perform under and by virtue of the terms of section 1 of article 5 of the Constitution of the State of Michigan, and that the per formance of such acts as have been performed by this respondent under said constitutional provision cannot be reviewed, set aside, revoked, or annulled by any action of this honorable court, or the manner of the performance of said acts be reviewed or interfered with by any action of this honorable court. “IV. That under section 1, art. 5, of the Constitution of the State of Michigan respondent has no right to hear testimony, consider affidavits, or consider any matter or thing not appearing upon the face of referendum petitions submitted to him or filed with him under and pursuant to the said constitutional provision, nor can any findings of fact upon issues framed as prayed for by relators be considered by or be bind-: ing upon respondent. “V. That the act of respondent in canvassing the petitions referred to in the petition of relators and his determination thereof is final and conclusive. “VI. It does not appear upon the face of said petition of relators, or upon the said motion, that the relators, or any of them, have such interest in the subject-matter set forth in said petition, or any part thereof, as to entitle them, or any of them, to the aid of the people’s writ of mandamus against this respondent, to compel the performance of the acts prayed for in the said petition, or any of said acts.” Saving only the one numbered “IV,” these objections, if they are sound,- show that the order to show cause was improvidently granted. Relators, too, suggest the interesting and important point that the constitutional provision is not self-executing. Upon the hearing of this motion we decide only that, unless the facts are settled by agreement, issues may be framed, the determination of which will disclose whether the petitions from Kent and Wayne counties, on file with the secretary of State, appear upon their face to be regular and to comply with the constitutional provision, and whether, if the petitions from both or either of these counties are held insufficient and to be rejected, there will remain a sufficient number of signatures to satisfy the constitutional requirement. The effect of this decision is that the action of respondent should be, in any event, based upon what appears upon the face of the petitions presented to him. We reserve all other questions until the record is completed. An order in conformity with the foregoing, will at once be entered. Ten days after the entry of the order will be given in which to agree upon the necessary facts or propose issues to be framed. Issues, if framed, will be determined by this court, and upon their determination either party may have 20 days in which to file additional briefs. At the end of said 20 days, the cause will be regarded as submitted.

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STEERE, J. This action was brought on April 27, 1911, against defendant, Richardson, as guarantor of Fred G. Horsfall, to recover a balance due plaintiff for goods sold by it to Horsfall, as evidenced by a note which he gave plaintiff on January 14, 1905. A written guaranty by defendant and note by Horsfall, with a credit reducing it to $667.10 and interest, are properly pleaded and fully set out in plaintiff’s declaration and bill of particulars. Defendant pleaded the general issue, with special notice that the guaranty given by him had been revoked and canceled before the indebtedness for which this action is brought accrued; and that the claim was barred by the statute of limitations. The written guaranty given by defendant to plaintiff is as follows: “Vicksburg, Mich., 1 — 12—1893. “American Steel & Wire Fence Co., “Chicago, Ill. “Gentlemen: “In consideration of your extending credit as you may see fit to F. G. Horsfall of Vicksburg, Mich., the undersigned, J. A. Richardson, of Vicksburg, Mich., do hereby guarantee to you and your assigns, the pay ment when due of any and all accounts and indebtedness (not‘exceeding the sum of $1,200.00). for or on account of goods and merchandise sold or advanced by you to said F. G. Horsfall or to his order. “Notes and other evidences of indebtedness and securities may be received by you and your assigns, on account or in settlement of the indebtedness hereby guaranteed, and the same may be renewed and extended as you or your assigns desire, or may be dealt with in any way without notice to the undersigned, without in any way affecting the liability under this guaranty for any amount remaining unpaid in cash to said American Steel & Wire Company. “Notice to the undersigned of sales or advances under this guaranty and of any default on the part of F. G. Horsfall is hereby waived. “This guaranty to be a continuing one, and to remain in full force and effect until the written revocation thereof is received by said American Steel & Wire Company. [Signed] “J. A. RICHARDSON.” It is stated in the charge of the trial court as conceded that this guaranty was executed January 12, 1903, instead of 1893 as inadvertently written. After receiving and accepting this guaranty plaintiff gave Horsfall credit and sold him goods on account from time to time as he desired and ordered them. On October 22, 1904, he was owing plaintiff a balance for goods purchased amounting to $688.19. On January 5,1903, defendant also gave plaintiff a similar guaranty in behalf of a firm located at Scotts, called the Big Four Mercantile Company. In October of the following year he wrote plaintiff in relation to “these matters” as follows: “Vicksburg, Mich., 10 — 22,1904. “ ‘Received Oct. 25, 9:29 a. rn., 1904, “ ‘W. W. F. Dept.’ “American Steel & Wire Fence Co. “Gentlemen: “I find that our boys at Scotts (the Big Four Mercantile Company) are not buying any more fence of you. I wish you would send back the guarantee J sent you. I also gave you one for Fred Horsfall a/c of this place. Are you still holding it? If so let me know all about it as I want these matters all straightened up. If he is settled up with you send it in also. “J. A. Richardson.” To this letter plaintiff replied as follows: “October 28, 1904. “Mr. J. A. Richardson, “Vicksburg, Mich. “Dear Sir: “In compliance with your request of the 22d we herewith inclose guaranty dated January 5th, 1903, covering all accounts and indebtedness between the Big Four Mercantile Co., Scotts, Mich., and this company. “As to the account of Mr. Fred Horsfall, would say that this gentleman is buying regularly from us, items now on our ledgers against him amounting to $688.19, under which circumstances we assume you do not desire return of the guarantee given us under date of January 12th, 1903. “Please acknowledge receipt, and oblige, “Yours truly, “R. S. White, “Credit Manager.” After waiting some time and receiving no answer to its letter, on January 14, 1905, plaintiff accepted Horsfall’s order for and shipped to him at Vicksburg another carload of wire fencing receiving his note therefor, dated January 14, 1905, on February 20, 1905. Plaintiff ultimately collected from him all sums owing it for goods shipped him prior to the last carload for which the note in question was given, but its efforts to collect the balance yet owing on the last carload being unsuccessful this action was brought after much delay and correspondence with him and defendant. The amount due plaintiff from Horsfall is apparently unquestioned, and each party requested a direct ed verdict. The trial court granted neither request, but instructed the jury that the account in settlement of which the note was given had not outlawed when this suit was begun, and submitted to them as an issue of fact whether defendant’s guaranty had been revoked before the last carload of material was sold to Horsfall, saying in part: “The question for you to determine is not necessarily what the plaintiff understood by that letter of October 22d, that is not the question. The question is what did Mr. Richardson intend by that letter of October 22d? Did he intend to revoke, recall and rescind that guaranty? If he did so intend, then did he express that intention in proper, appropriate, apt words, language such as would fairly and reasonably convey that intention to the average mind — to a fair, average business mind?” The jury rendered a verdict for defendant, and judgment was entered thereon accordingly. The court correctly instructed the jury as to the statute of limitations. It is true as pointed out by defendant that the last goods were sold to Horsfall January 14, 1905, over six years before this action was begun, but his note given therefor fell due May 1, 1905, and suit was brought April 27, 1911; and there was no such unauthorized extension as might operate to release a guarantor, for the guaranty itself expressly gives authority to take notes for any indebtedness which it covers and to renew or extend the same as plaintiff or its assigns may desire. There was no issue of fact raised by the evidence for submission to the jury. The controlling facts in the case are not in dispute. Both sides requested a directed verdict. Though questioned, it may be conceded that defendant wrote the letter of October 22d, with intention to revoke his guaranty as to Horsfall; but his animus revocandi standing alone did not revoke and availed him nothing, unless he in clear and un equivocal language which could not reasonably be misunderstood gave plaintiff notice of his present purpose to then terminate the guaranty. The test is not what he meditated, but what he declared. The alleged letter of revocation first dealt with the subject of defendant’s guaranty for the business concern at Scotts, which he requested returned because they were not any longer dealing with plaintiff. He then inquired in regard to the guaranty he gave for Horsfall, asked plaintiff to let him know all about it, as he wanted “these matters” all straightened up, and concluded with the request to send Horsfall’s guaranty also “if he is settled up with you.” While he expresses a desire to have these matters all straightened up, he does not intimate when or how; he nowhere states that he terminates or révokes the continuing guaranty he had given and will no longer be bound by it, and asks for its return only on the contingency that “he has settled up with you,” in the same letter in which he recalls the other because the parties have ceased doing business with plaintiff. The communication manifestly falls short of a distinct and definite notice of revocation of his written guaranty in such plain and unequivocal language that it could not be otherwise construed. In Lanusse v. Barker, 3 Wheat. (16 U. S.) 101, it was said of doubtful expressions in a subsequent letter relative to a written guaranty: “It was in the defendant’s power to have revoked his assumption, contained in the letter of the 9th, at any time prior to its execution, but it was incumbent on him to have done so, avowedly, and in language that could not be charged with equivocation.” Plaintiff did not, however, arbitrarily stand on its interpretation of defendant’s alleged letter of revocation of October 22d (received October 25th), but with reasonable promptness, and before doing any further business with Horsfall, made reply, returning the guar anty of the parties “not buying any more fence” of it, fully answered all questions as to Horsfall, stated how his account stood, and that “the gentleman is now buying regularly from us,”, advised defendant of its understanding of his desires and construction of his letter, concluding with a request for acknowledgment. Defendant did not answer this letter, which he admits receiving. With his attention thus promptly called to plaintiff’s interpretation of it, erroneous, as he now claims, he remained silent when he should and could have spoken, until additional goods were ordered by and sent to Horsfall. He knew that Horsfall then owed and continued to do business with plaintiff on the strength of his guaranty, not returned as he requested because the conditions under which he asked it did not exist. Thus advised, candor and good faith demanded that he then explicitly declare himself if it was his intent to revoke. Even if his construction of the letter was warranted in any event, by his silence he tacitly accepted the construction which plaintiff submitted to him. Under the undisputed facts found in this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs to plaintiff, and a new trial granted. Stone, C. J., and Kuhn, Moore, Brooke, and Person, JJ., concurred. Ostrander and Bird, JJ., did not sit.

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Stone, C. J. This is an action of assumpsit commenced by declaration. In the introductory part of the declaration is the following averment: “For that whereas, the said plaintiff avers that on, to wit, the 9th day of March, 1915, he was the owner of an undivided one-third of a promissory note, a copy of which is hereafter set forth.” The remainder of the declaration consists of the common counts alleging that the indebtedness accrued to the plaintiff, without alleging any assignment or transfer to the plaintiff, from any person. At the foot of the declaration there was the following notice: “To the Above-Named Defendant: Take notice that on the trial of the above cause, the plaintiff under the money counts, will give in evidence a certain promissory note, a copy of which is given below.” Signed by attorneys for plaintiff. “Copy. “February 1, 1901. “One year after date I promise to pay to the order of Charles Jensen sixty-three hundred ($6,300.00) dollars, with interest at°the rate of 5 per cent, per annum. Value received. “$6,300.00. J. E. Gamble.” On the back of the note there were three indorsements of interest. The plea was the general issue with a special notice of the statute of limitations, and claiming, among other things, the following: “This defendant will further insist in his defense that this is bringing a suit for a part only of a claim, and cannot for that reason be maintained. Defendant will further show that the plaintiff has no right to bring said action in its present form.” To maintain the issue, the plaintiff offered in evidence the promissory note, a copy of which appears above, and also introduced the files in the probate proceedings in the matter of the estate of Charles Jensen,deceased (he died July 1, 1905), including the will of Charles Jensen, which devised all his property, both real and personal, to Anna Jensen. The probate proceedings showed the appointment of Burt Wickham, as administrator of the estate of Charles Jensen, and contained the inventory showing that the total property belonging to .the estate was the note in suit. Plaintiff also introduced the final account of Burt Wickham, as administrator, showing that the note of $6,300 was on hand. The final order of distribution in the estate of Charles Jensen was introduced, and, in part, it was as follows: “It further satisfactorily appears to the court that after the death of Chas. Jensen, his wife, Anna Jensen, the sole legatee under the will of the said Chas. Jensen took over said note, and retained it during her lifetime, and that at her death (she died March 5, 1912), it passed to the custody and control of Francis W. Fincher, the executor of the estate of the said Anna Jensen, and that at the time of her death she was the owner of said note, and all rights under said note, and that said note now belongs to, and is a part of, the estate of the said Anna Jensen.” The petition of Francis W. Fincher, the executor of the last will and testament of said Anna Jensen, showing that said estate had been fully administered, and that he desired to file his final account and be discharged, and that the residue of the estate be distributed, was offered and received in evidence. The final order of distribution in the Anna Jensen estate was received in evidence, and was in part as follows: “It satisfactorily appears to the court that there is now in the hands of said executor the sum of $298.06, and a certain note dated the 1st day of February, 1901, for the sum of $6,300 given by J. E. Gamble to Charles Jensen, which note at her death belonged to the said Anna. Jensen. It further satisfactorily appears to the court that the final account of said executor should be allowed at the sum of $65 for his services, besides his •expenditures, and that the residue of said estate, including said note, belongs equally to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have and own one-third; it is therefore ordered, adjudged, and decreed that * * * the residue of said estate be distributed equally between Lewis Jensen, Maggie Gulumbo, and Annie Gamble, and that the said note for $6,300 and the interest thereon shall belong to the said Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each to have a one-third interest therein.” It also appeared that the will of Anna Jensen, deceased, which had been duly admitted to probate, bequeathed to Lewis Jensen, Maggie Gulumbo, and Annie Gamble, each one-third of any property which she might own at the time of her death. At the close of the plaintiff’s case, counsel for defendant moved the court for a directed verdict in his favor, for' the reason that the case as made was a splitting up of an indivisible cause of action, and an attempt to sue upon and recover only a portion of the note. The motion was overruled and an exception duly taken. The court directed a verdict and judgment for the plaintiff for $2,450 and costs. The defendant brings error. The first two assignments of error are to the following effect: (1) That the court erred in overruling defendant’s motion to direct a verdict for defendant for the reason above stated. (2) That the court erred in holding and determining that the statute gave a right of action for an undivided interest in the note in suit. The last assignment of error raises objection to the specific language of the charge as to the liability of the defendant in this action. It is the claim of the appellant that this was the splitting up of an indivisible cause of action, and as such cannot be maintained by the plaintiff, and the following cases a,re cited in support of ‘that position: Dutton v. Shaw, 35 Mich. 431; Allison v. Connor, 36 Mich. 283; Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Mercantile Ins. Co. v. Holthaus, 43 Mich. 423 (5 N. W. 642) ; Milroy v. Mining Co., 43 Mich. 231 (5 N. W. 287); Vincent v. Moore, 51 Mich. 618: (17 N. W. 81); Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (53 N. W. 394, 32 Am. St. Rep. 494); Blackburn v. Blackburn, 132 Mich. 525 (94 N. W. 24); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033). In Dutton v. Shaw, supra, this court said: “The principle which prevents the splitting up of causes of action, and forbids double vexation for the;same thing, is a rule of justice, and not to be classed: among technicalities. It was intended to suppress serious grievances.” In Continental Ins. Co. v. Lumber Co., supra, it was said: “It is a well-settled rule that an entire claim or demand arising out of a single transaction, whether in, thé nature of a contract or tort, cannot be divided into separate and distinct claims, and the same form of action brought for each, or two suits maintained, without defendant’s consent,” and many cases are cited. .On the other hand, it is the claim of the plaintiff that he had the right to bring and maintain this suit for his share of the note, as adjudged by the decree of the probate court, under section 9444, '3 Comp. Laws, as amended by Act No. 177, Pub. Acts 1903 (3 Comp. Laws 1915, § 13916), which reads as follows: “In such decree the [probate] court shall name the persons and the proportions or parts to which each shall be entitled; and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any other person having the same, or any part thereof. * * *” Counsel cite authorities from other States, also Perrin v. Lepper, 34 Mich. 292, and Michaud v. Lumber Co., 122 Mich. 305 (81 N. W. 93), and they urge that defendant, not having pleaded nonjoinder of plaintiffs, is in no position to raise the question here urged. There can be no doubt that the rule of law against the splitting of a single cause of action into several actions is founded upon the plainest and most substantial justice; that is, that litigation should have an end, and that no person should be unnecessarily harassed with a multiplicity of suits. The rule that a single cause of action cannot be split and made the subject of several actions applies, as a rule, where the cause is in favor of several persons jointly or against several persons jointly, and since a plaintiff having an entire indivisible demand cannot divide it into distinct parts, and maintain separate actions on it, so he cannot accomplish the same result by an assignment of a part of his demand, thereby enabling others to do what he could not do. 1 R. C. L. p. 341, and cases cited; 23 Cyc. p. 439 et seq. It would be unjust to hold that where A. has given his promissory note for a stated amount, all of which is due at one time, he should be subjected to three or perhaps ten suits upon such individual obligation or contract. There can be but one action on a single demand. We are of the opinion that there is nothing in the statute above referred to which modifies or abrogates the rule just stated. It cannot be successfully urged that there is no way in which the rights of the plaintiff and defendant can be determined, except by maintaining this action. The record does not show that the executor of the estate and will of Anna Jensen has been discharged. If he has been discharged, an administrator de bonis non could be appointed to bring the suit, or, in case the other claimants will not join as plaintiffs, they may be made defendants in a suit in equity, and the whole controversy be brought before the court and determined in one suit. Mercantile Ins. Co. v. Holthaus, supra; 4 Cyc. pp. 28, 29, and cases cited. We cannot agree with plaintiff’s counsel that it was necessary for defendant to have pleaded the nonjoinder of plaintiffs in abatement. Where persons who ought to be made plaintiffs, in an action on a joint contract, are not joined as such, the objection need not be urged by plea in abatement, or even by special notice, but is fatal on objection, at any stage of the action. Blackburn v. Blackburn, supra, and cases there cited; 1 Green’s Mich. Practice (3d Ed.), § 261. The rule is otherwise in actions of tort, as stated in Michaud v. Lumber Co., supra, and in Achey v. Hull, 7 Mich. 423. We think that the trial court erred in not directing a verdict and judgment for the defendant, for the reason above stated. The judgment of the court below will be reversed, and no new trial granted. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

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Stone, C. J. This case is before us upon exceptions before sentence. The defendant was convicted of a violation of the local-option law, in that he did, on August 18, 1915, at the city of Battle Creek, county of Calhoun, sell a quantity of beer and whisky to one Leonard Forester, he, the said defendant, not being then and there a druggist or registered pharmacist, etc. The complaint was made by one Robert C. Towsley, a deputy sheriff, upon information and belief. The warrant issued by the justice of the peace contained the following recital : “And whereas, on examination on oath of the said R. C. Towsley and George Aldrich by me, the said justice, it appears to me, the said justice/that said offense has been committed, and there is just cause to suspect the said Tom Curran to have been guilty thereof: Therefore in the name of the people of the State of Michigan, you, and each of you are hereby commanded forthwith to arrest the said Tom Curran, and bring him before me to be dealt with according to law.” An examination was had before the justice at which Robert C. Towsley, Leonard Forester, and George Aldrich were examined on oath in the usual manner. Upon the examination, counsel for the defendant made a motion to quash the complaint and warrant, for the reason that the affidavits, before the issue of the warrant, of Forester and Aldrich were taken before Charles R. Young, a notary public, and that said witnesses gave no testimony under oath before the said justice to sustain the complaint signed by Robert C. Towsley, and that the justice had no jurisdiction to issue said warrant for the arrest of defendant. This motion was denied by the justice, and the defendant was held for trial in the circuit court. In the circuit court, when arraigned at the bar in open court, the defendant waived the reading of the information which was in due form, and stood mute, whereupon, by order of the court, a plea of not guilty was entered, a trial was ordered and a jury duly impaneled and sworn, and the trial proceeded.. Upon the trial of the case it appeared upon the cross-examina tion of George Aldrich, a witness for the people, that he made the affidavit before Charles R. Young, a notary nublic. Upon the cross-examination of Robert C. Towsley the following occurred: “Q. I show you the complaint in this case and. ask you if that is your signature? “A. Yes, sir. I signed that complaint before Judge Hart [the justice] ; I signed that complaint on information and belief.” Upon redirect examination he testified: “Q. What did you base your complaint upon? “A. Mr. Forester’s and Mr. Aldrich’s affidavits. “Q. I wish you would state to the jury, whether or not these young men were before the magistrate, Judge Hart, at all. “A. Yes, sir. “Q. Did he put them under oath and talk with them? “A. He talked with them; we talked with Judge Hart, and they both talked with Judge Hart, and he told me to take them in to Charles Young, and have an affidavit made. “Counsel for Defendant: I wish to make a motion if the jury may be excused. “The Court: In their examination before Justice Hart, were they examined by the justice under oath9 “A. Don’t think it was under oath. “The Court: Just took their unsworn statements? “A. Yes, sir. “The Court: Were you present when Justice Hart examined these young men? “A. Yes, sir. “The Court: So far as you remember was the oath administered? “A. I do not think they were under oath. He merely talked with them there, and we went in and took their affidavits in front of Mr. Young, and then they went in and swore to it. “The Court: Went in where to swear to it? “A. I think Young swore them to .it.” The justice was called as a witness by the defendant. He testified, under objection by the prosecuting attorney, that he issued the warrant which bore his signature. “The warrant was written out by Mr. Young, the clerk, before I signed it. It is made out in the usual form. The body of the warrant is in the handwriting of Mr. Young. I did no writing on the warrant myself, except to sign it. I don’t know whether I read the complaint and warrant over before I signed them or not. I would not say that I did. “Q. Is that warrant based on information and belief? “A. Yes, sir. The parties who made the affidavits came in there; I think Towsley brought them in there, and I talked with them. They were put under oath by Young, I think. Young is the man who swore them as to what knowledge they had. I don’t think they were sworn before me, but I would not say positively. * * * Our usual custom has been in most all complaints taken down there, to have affidavits brought to me and from them I have issued the warrants. “Q. Without examining the witnesses yourself? “A. Sometimes we examine them, and then other times we do not. I think this is one of the cases in which I did not swear them, as the affidavits were made before Charles R. Young.” It appeared that Mr. Young was the clerk of the court over which the justice presided. It also appears that the city of Battle Creek is operating under a charter which provides for a “justice’s clerk,” appointed in accordance with the provisions of Act No. 171, Pub. Acts 1911. Section 3 of the act, among other things, provides that (3 Comp. Laws 1915, § 14758): “Each clerk appointed under the provisions of this act is hereby empowered to take complaints in criminal causes and swear the complaining witnesses thereto.” The above facts appearing upon the trial, defendant’s counsel made a motion that the information be quashed, the jury dismissed, and the defendant discharged for the reason that the complaint was made by said Towsley on information and belief, and that the only information given by Forester and Aldrich in support of the complaint was in the form of a sworn statement to Charles It. Young, a notary public, and no sworn evidence was given by said witnesses, or any other witnesses before the said justice before the warrant issued. The motion was denied, and defendant duly excepted. The defendant having been found guilty by the jury, he has brought the case here for review, and the sole assignment of error is that the court erred in overruling the motion to quash the information and discharge the defendant. Counsel cite and rely upon the following decisions of this court: People v. Colleton, 59 Mich. 573 (26 N. W. 771); People v. Bechtel, 80 Mich. 623 (45 N. W. 582); People v. Heffron, 53 Mich. 530 (19 N. W. 170); Brown v. Hadwin, 182 Mich. 491 (148 N. W. 693, L. R. A. 1915B, 505), In the Colleton Case the complaint was taken before, and the warrant was issued by, the clerk of the police court of Grand Rapids, and this court held such action involved judicial action which could only be taken by a court, and could not be performed by the clerk. That is quite a different case from this where, at most, all that is claimed is that the affidavits supporting the complaint were made before the clerk, who had statutory authority to take complaints and swear the complaining witnesses in criminal cases. But it is not necessary to pass upon this question. It is the contention of the prosecuting attorney that the recital in the warrant in the case at bar gave jurisdiction to the justice of the peace, and that such recital that he examined a witness under oath in addition to the complaining witness cannot be impeached. He further contends that it is against the weight of authority to hold that the jurisdiction acquired by the justice of the peace, as shown by the recitals in the warrant, may be rendered void by the uncertain testimony of a fleeting witness however long after the examination was held; and it is further contended that parol evidence is inadmissible to contradict such recitals in the warrant. We do not deem it necessary to pass upon the question whether such recital may or may not be contradicted. We think that the question of the jurisdiction of the examining magistrate was not a proper issue upon the trial of the case upon its merits. After the arraignment of the defendant, the entry of the plea of not guilty, and the impaneling and swearing of the jury, it was too late to raise a question of the jurisdiction of the justice. The issue before the jury was the guilt, or innocence of the defendant. The impropriety of going into such a collateral question as the jurisdiction of the justice is clearly shown by the examination of the justice himself, who, at the most, is uncertain as to whether he swore the man Aldrich himself, or whether the clerk swore him. The jurisdiction of the circuit court, obtained in the manner above stated, could not be destroyed because the complaining witness testified that he did not have personal knowledge of all the facts stated in the complaint. To permit this would be to allow oral testimony taken, as in this case, long after the complaint was made, to oust the court of jurisdiction given in the manner provided by the statute. We are therefore clearly of the opinion that this motion, even if there were any merit in it, ought to have been made before the jury were sworn. This entire subject-matter was outside the merits of the case. After the jury had been sworn and the trial of the issue as to the guilt of the defendant had been begun, it was too late to raise the objection as to the proceedings before the justice. This has been so often ruled by this court that it hardly seems .necessary to cite cases. The real merit of the matter is, that all preliminary questions about the jurisdiction of the justice should'have been settled before the jury were sworn. It was not a matter which went to the merits of the trial. People v. Schottey, 66 Mich. 708 (33 N. W. 810); People v. Haas, 79 Mich. 449 (44 N. W. 928); People v. Payment, 109 Mich. 553 (67 N. W. 689). In this casé it was held that where a complaint and warrant for an offense not cognizable by a justice of the peace are valid in form, the question whether the evidence taken before him justified his conclusion to issue the warrant, is not triable at the circuit. People v. Rush, 113 Mich. 539 (71 N. W. 863); People v. Brott, 163 Mich. 150 (128 N. W. 236). In the last-cited case it was held that on a motion to quash, first presented after a jury had been sworn, based on the ground of want of testimony before the examining magistrate, no error was committed in refusing to discharge the respondent. People v. Davis, 171 Mich. 241 (137 N. W. 61). In the Bechtel Case, cited by defendant’s counsel, it was held that the court will presume that the justice examined the complainant and his witnesses orally, where such fact is recited in the warrant purporting to have been issued upon such complaint and examination. We are of opinion that there is no merit in the question presented, and the conviction of the defendant is affirmed, and the court below should proceed to judgment. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

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Clark, J. Plaintiff Moffit was injured. The injury was caused by concurrent negligence of Adrian Endtz and Grand Rapids Railway Company. The verdict was $7,500 against Endtz and no cause of action against the company. Judgment was entered on the verdict, which, reviewed on error in this court, was reversed. Moffit v. Railway Co., 228 Mich. 349. The cause came on for second trial in the superior court without a jury. In an opening statement, counsel for plaintiff said: “Some question has arisen as to the effect of the reversal in the Supreme Court of the judgment, as to whether that reversal reverses the judgment that was rendered against defendant Endtz, as well as the judgment that was rendered in favor of the railway company. _ The railway company has made a proposal to plaintiff to procure its release from the suit, which proposal is satisfactory to plaintiff, providing that upon acceptance of that proposal the railway company may be released from the suit, the suit dismissed as to it without costs, and judgment taken against the defendant Endtz in lieu of the former judgment which was rendered against him for substantially a similar amount, and plaintiff is willing that judgment be entered against the defendant Endtz, and a judgment of dismissal against the railway company, without costs to either party; the judgment against Endtz to be for the sum of $3,250. As I understand it, the testimony has all been taken before the court and a verdict has been rendered by one jury against Endtz upon' that record. There was no question about the liability of Endtz. In the view of counsel for plaintiff the action of the Supreme Court did not reverse the former judgment, but because there may be some question about that plaintiff desires a judgment entered at this time against Endtz in place of the other judgment, so that the record will be clear.” Plaintiff was called as a witness and his counsel asked of him and he answered as follows: ■ “Q. And now you are ready to go ahead with the case against both defendants? “A. Yes, sir.” And thereafter plaintiff testified at length of the fact and manner of injury and of his damages. At the conclusion of proof, plaintiff’s counsel said to the court: “Now, if your honor is willing to just hold this in abeyance until we can close the matter with the railway company, we will submit a stipulation asking for judgment dismissing them, and then we will leave to the court the matter of rendering judgment against Endtz for this difference. If the court is willing to do that, that is what we are asking, Mr. Paley, we are willing to give your man credit for the amount paid on the judgment against him before, and we now ask judgment against him for the difference, $3,250.” Defendant railway company paid to plaintiff $4,250 and a stipulation by attorneys for plaintiff and the railway company was then made and filed: “In the above suit defendant Grand Rapids Railway Company, while denying all liability to plaintiff for any of the matters set up in plaintiff’s declaration, nevertheless, in order to avoid the expense and risk of litigation, has made a settlement by paying to said plaintiff a sum of money satisfactory to both parties hereto and in that manner having procured the consent of plaintiff to a dismissal of said cause as to defendant railway company. “Therefore, in consideration of the foregoing and upon the agreement of said parties through their respective attorneys, it is hereby stipulated and agreed that an order may be entered in said cause dismissing said suit as to defendant Grand Rapids Railway Com-, pany without costs to either party, without prejudice, however, to the rights of plaintiff against defendant Endtz.” Over objection of counsel for Endtz judgment was then entered for plaintiff and against Endtz alone for $3,250. This judgment later on motion and by order was vacated and the cause dismissed as to Endtz. To review the order plaintiff brings error. Whether the judgment in the first trial survived reversal it is unnecessary to determine. The proceedings show that it was treated as vacated. It was not pleaded by defendant Endtz as a bar to the second trial. Plaintiff proceeded against both defendants on the original declaration and gave evidence to support its averments. Under the authority of McArthur v. Oliver, 53 Mich. 299, we must treat, for the reason stated, the first judgment against Endtz as reversed. Defendants were joint tort-feasors. 1 Cooley on Torts (3d Ed.), 247; Lindsay v. Acme Cement Plaster Co., 220 Mich. 367. If defendants had been joint debtors (which they were not), as for a sum of money due by certain and express agreement, or upon a single judgment against them, then what was attempted here by plaintiff might perhaps be sustained because of section 14585, 3 Comp. Laws 1915. And see Rohrabacher v. Walsh, 170 Mich. 59; 27 A. L. R. 805, note. If plaintiff in separate suits had taken several judgments, one against Endtz for $7,500, and one against the railway compahy for $4,250, and had collected the smaller judgment and accepted the avails, both judgments would have been satisfied except as to costs. The plaintiff might have had several judgments, but he can have but one satisfaction. Blackman v. Simpson, 120 Mich. 377 (58 L. R. A. 410); Freeman on Judgments (5th Ed.), § 1126. A release of a cause of action as against one of two or more joint tort-feasors operates as a release of all. This is on the theory that the release amounts in law to a satisfaction of the demand. But what of plaintiff’s attempted reservation of a right to proceed further against Endtz? It was said in Carey v. Bilby, 129 Fed. 203: “Sometimes, however, as in the case in hand, a release executed in favor of one wrongdoer is accompanied with the reservation of the right to sue others who were jointly concerned in the wrong, and in such cases the question has frequently arisen, how shall such an instrument be interpreted? Shall the reservation of the right to sue others be ignored, and the instrument treated as raising a conclusive presumption that full compensation for the wrong has been'made, as though it were a technical release under seal, or shall the reservation of the right to sue others be taken to mean that full compensation has not been received by the injured party, and that he merely intended to agree with the released party not to pursue him further, but without releasing his cause of action against the other wrongdoers, or admitting that he has received full compensation for the injury? With reference to this question the authorities are not in accord. Some courts are disposed to hold, and have held, that when such an instrument contains apt words releasing one of the wrongdoers, it operates to release all, and that any clause inserted therein reserving a right to sue others after one has been released is repugnant to the release, in that it defeats, or attempts to defeat, the natural legal effect of the instrument; and that it should therefore be ignored. McBride v. Scott, 132 Mich. 176 (61 L. R. A. 445, 1 Ann. Cas. 61, 102 Am. St. Rep. 416) ; Abb v. Railway Co., 28 Wash. 428 (68 Pac. 954, 58 L. R. A. 293), and cases there cited. Other courts hold, however, that such an instrument should be given effect according to the obvious intent of the person executing it, and that it should not be treated as a technical release operating to destroy his cause of action as against all of the joint tort-feasors, but rather as a covenant not to sue the party in whose favor the instrument runs.” The McBride Case is decisive of the question. After reviewing authorities, it was there held: “We are of the opinion that the better rule is that contended for by defendants in this case; that to admit of a settlement with one tort-feasor under such circumstances as are here presented, and to hold that a reservation such as is here attempted saves the right as to other tort-feasors, would open the door for the plaintiff in any case to acquire by successive settlements more than just compensation; or, as is said in Brown v. Kencheloe, 3 Cold. (Tenn.) 192: ‘The plaintiff in many instances would operate upon the fears of the defendants, and get from each full damages for the trespass committed.’ ” And see Lindsay v. Acme Cement Plaster Co., supra. The release of the railway company amounts in law to a satisfaction of plaintiff’s demand. Affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

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Brooke, J. This is an application on the part of both relators for an order requiring respondent, the circuit judge of Wayne county, to vacate or modify an injunction issued by him upon the filing of the bill of complaint by one Anna Gornetzky. It appears that said Anna Gornetzky secured a judgment (affirmed in this court) against her father-in-law, Harris Gornetzky, and her mother-in-law, Matilda Gornetzky, and that at the time she commenced her action against the parents of her husband they were possessed of certain real estate and a small printing business. She charges in her bill that while she was prosecuting her action against the Gornetzkys, they, in combination with defendant Harry Goodman and others, conspired together to place their property beyond her reach as a judgment creditor. It is charged that to this end relator the Maple Press Printing Company was formed, and a chattel mortgage on the property of said company executed in favor of relator Harry Goodman. Upon the filing of the bill, relators and the other defendants named in said bill of complaint filed several answers under oath, denying the charges of fraud and conspiracy contained in complainant’s bill of complaint. Upon the hearing of the application for a preliminary injunction the court below enjoined: (1) The Maple Press Printing Company from incumbering, disposing of, or otherwise dealing with a certain Oldsmobile automobile bearing license No. 37,-805. (2) Harris Gornetzky and Lasser Gornetzky from taking, as salary or otherwise, any sums of money from the assets of the Maple Press Printing Company. (3) Harry Goodman from attempting in any way to transfer or foreclose the chattel mortgage given, on October 3, 1914, to him by the Maple Press Printing Company. Respondent having denied the motion to vacate or modify the injunction so granted, this application for mandamus followed. It i.s disclosed by the record that at the time of the hearing of the application for a preliminary injunction and in denying said application, the learned circuit judge offered to proceed to an immediate hearing upon the merits. Defendants in the chancery proceeding (relators here), however, declined to proceed to an immediate hearing, urging prior engagement of counsel and other reasons for such refusal. It is strongly urged by counsel for respondent that this refusal on the part of relators to proceed to a hearing upon the merits should be considered as a further evidence of their bad faith in the premises. While defendants’ conduct in this regard is certainly open to the imputation of bad faith, we are still of the opinion that the injunctive relief granted went too far. The relator the Maple Press Printing Company is now a duly organized corporation. Harris Gornetzky and Lasser Gornetzky are two of its officers, and appear to be actively engaged in its interest in the publication of a small Jewish periodical. It is shown by the record that Harris Gornetzky’s salary was $25 a week, and that of Lasser Gornetzky $15 per week. The injunction prevents them from withdrawing from the corporate funds these amounts, which, it is asserted, is necessary for their several maintenance and support. It must be remembered that the complainant in the original case is neither a stockholder nor a creditor of the Maple Press Printing Company. We are of opinion that the injunction should be modified, permitting the relator the Maple Press Printing Company to pay the salaries of Harris Gornetzky at $25 per week and Lasser Gornetzky at $15 per week, said payment to commence from the- entry of the order in this court, and to continue until the final determination of the case in the court below. The case being at issue, the complainant should have little difficulty in securing an early hearing under the rules of the court. Modified as indicated, the injunction will stand. No costs will be granted upon this motion. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.

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Stone, C. J. The bill of complaint herein was filed in October, 1914, to set aside for alleged fraud a real estate mortgage and accompanying promissory note made and executed by complainant to the defendant on December 16, 1911, for $5,000. The matters leading up to the making of these instruments are somewhat in dispute, but the following facts appear: Jacob Woodman, a resident of Akron, Tuscola county, died on November 21, 1911, at the age of 81 years. He left an estate, which, after the payment of his debts, was of the value of upwards of $20,000, which consisted of the farm inventoried at $10,000 and personal property aggregating $10,000 and upwards, tie left a will bearing date June 10,1911. Under the terms of the will the complainant was devised the farm above referred to, and also all live stock and farm tools and implements owned by decedent at the time of his death, and there was bequeathed to two sisters of the complainant $250 each; and it was provided that the residue of the estate should be equally divided between the defendant and her sister, Maud Gilmore. In case of no will the estate in question would have been divided into four equal portions, one to the defendant, one to Maud Gilmore, her sister, one to the complainant and her two sisters as children of a deceased daughter, and one portion to the children of Cynthia Jubar, another deceased daughter of said Woodman. The last-named children are referred to in the record as “the Jubars.” They were, by the terms of the will, cut off from any share of the estate. The complainant had lived in the home of Jacob Woodman from the time she was 14 months old to the time of his death, and the death of his wife, which occurred 19 days after his death; and the will provided that complainant should live with and care for testator and his wife upon.the farm during the life of each of them. At the time of the death of said Woodman, complainant was 24 years of age and was married, living with her husband upon the said farm. The bill of complaint states that the said will was offered for probate to the probate court of said county, and came on for hearing on or about December 15, 1911, and the hearing was adjourned from time to time until January 16, 1912. The bill further states that the defendant and her sister, Maud Gilmore, being dissatisfied with the said will and claiming that it was unjust, and that the testator was mentally incompetent, and that they intended to contest the probate thereof, induced the said complainant to go with them to the office of an attorney at law, at Bay City, and there to execute the real estate mortgage above referred to in settlement of their claim, and that the said Maud Gilmore was to share equally with the said defendant in the division of the proceeds of said mortgage. The bill further states that the sole consideration, if any, for making said promissory note and mortgage was that no contest of said will by any person could possibly be "made, and that no contest of said will would be made, and that said attorney, acting for said defendant, represented to said complainant that in no event would a contest of said will be made by any one if the mortgage was so given, and that relying upon said assurances of said attorney, and because of the threats and false promises of said defendant and Maud Gilmore, complainant did sign said promissory note a,nd mortgage; that when the hearing of the probate of said will came on in the probate court there was a contest made by the sisters of the complainant and the Jubar heirs. The bill further represents that at said hearing the said attorney who had drafted said note and mortgage assured complainant that, as there was a contest being made of the probate of said will, said promissory note and mortgage had been destroyed by him. The bill alleges that upon the hearing in the probate court, which involved a large expense to complainant, said will was duly allowed for probate; that thereupon the 'contestants appealed to the circuit court for said county, and a trial was had of such appeal at the September term, where said will was again sustained, in which complainant was again involved in a large amount of expense in securing witnesses and counsel which necessitated the expenditure of a large amount of money, exceeding the sum of $1,200; that at the hearing in the circuit court the said attorney, who claimed to have had possession of said note and mortgage for the defendant and her sister, again assured complainant that said mortgage had been destroyed, that said mortgage was recorded in the office of the register of deeds of said county immediately after the trial in the circuit court, to wit, on October 8, 1912, having been, left for record by said attorney of said defendant and Maud Gilmore. The bill further states that at the time of making said promissory note and mortgage, the said defendant and Maud Gilmore and their said attorney well knew that a contest of said will would be had, and that the assurances of said attorney as to who could contest a will were by him well known to be false, and intended to mislead complainant, he well knowing that complainant would rely upon his statement as to the law, and that he and said defendant and her sister connived together to procure from complainant the said promissory note and mortgage by false, fraudulent, and misleading representations, and without any consideration whatever therefor, and that said mortgage and promissory note were in fact obtained by said cunning devices, and without intending to give, or giving, any consideration therefor. After praying that the defendant be required to answer the bill of complaint, the bill further prayed that the said defendant might, by order and decree of the court, be required to deliver up for cancellation the promissory note and mortgage mentioned M the bill of complaint, and that she be enjoined by order and injunction of the court from in any manner selling, assigning, or disposing of the said note and mortgage, and, further, that said note and mortgage be declared void and of no effect, and that said defendant be required to discharge the same of record, concluding with a prayer for general relief. The answer of the defendant denies substantially the averments of the bill, and states that the said note and mortgage were given solely because the defendant and her sister, Maud Gilmore, agreed to make no contest of said will, and agreed to allow said will to be admitted to probate, and specifically denies that any representation whatever was made to the effect that no contest could possibly be made to said will by any person, or that no contest of said will would be made by any one, and denied that said attorney assured complainant that in no event would a contest of said will be made by any one if said mortgage was given, and denied that said mortgage was given because of any threats and assurances, as alleged in said bill. By the answer the defendant also admitted that a contest of said will.was made in the probate court for said county, the contestants appealing to the circuit court, where they were defeated; but defendant denied that it was at all necessary for complainant to employ counsel, or go to any expense whatever in said proceedings, or that she was compelled to do so; that she did the same voluntarily and without consulting defendant, and any sums paid out by her were unnecessary, as defendant employed counsel to assist at the trial in establishing said will, and that counsel so employed had been paid by the estate, and that if complainant had paid out any such sum as claimed by her, the same was unnecessary and unreasonable. Defendant further, by her answer, admitted that she did not attend the hearing on the probate of said will, and averred that she never had been asked to contribute to any expense incurred by complainant. Upon the hearing of the instant case, it was undisputed that at the time of the execution of the note and mortgage, and as a part of the same transaction, the following agreement was entered into by the parties: “Whereas, Jacob Woodman departed this life on the 21st day of November, 1911, leaving surving him Minnie Hall Sellers, granddaughter, party of the first part herein, and Maud Gilmore and Ella Perry, daughters, parties of the second part herein, and leaving a last will and testament, which said last will and testament is now on file in the office of the probate court for Tuscola county, Michigan, awaiting probate thereof; “And whereas, the parties hereto think that the said Jacob Woodman did not in the said will make a fair and equitable distribution of his property as between the parties hereto, and whereas the parties of the second part hereto being dissatisfied with the terms of the said will propose to contest the probate of the same for the reason that the said will does not make a fair and equitable distribution of his property, and also for the reason that they claim that at the time the said will was made the said Jacob Woodman was incompetent to make the same; “And whereas, the parties hereto are desirous of avoiding a contest of the said will and coming to an amicable and friendly settlement of all property rights; “Now, therefore, in consideration thereof, it is agreed as follows: The said party of the first part hereby agrees to pay to each of the parties of the second part the sum of two thousand dollars, and to pay to Myrtle Hall Landon and Deborah Hall Hammel, her sisters, each the sum of two hundred and fifty dollars, and as provided for in paragraph three of said will, and also to pay an amount not to exceed five hundred dollars toward funeral expenses, nursing and doctors’ bill incurred in the last sickness of the said Jacob Woodman and Rhoda Woodman, his wife, now deceased. It is further agreed that each of the parties hereto shall each pay one-third of all probate and administration expenses of the will of the said Jacob Woodman. In consideration of the said payments to be made as aforesaid by the said party of the first part, the said parties of the second part hereby agree to make no contest and consent to the admitting to probate of the will of the said Jacob Woodman. “Witness the hands of the parties hereto this 16th day of December, 1911. “Minnie Hall Sellers. “Maud Gilmore. “Ella Perry. “In presence of: “M. L. Courtright. “James Gilmore.” “State op Michigan, ) __ . “County of Bay [ss” “On this 16th day of December, 1911, .before me, a notary public in and for said county, personally appeared Minnie Hall Sellers, Ella Perry and Maud Gilmore, to me known to be the persons who executed f oregoing instrument, and acknowledged that they executed the same as their free aet and deed. “M. L. Courtright, “Notary Public, Bay County, Michigan. “My commission expires April 1, 1913.” Upon the hearing there was a sharp conflict in the testimony as to the representations made by Mr. Courtright, it being claimed by the complainant, as alleged in the bill, that Mr. Courtright (who seems to have been a relative of some of the parties, and upon friendly terms with all of them, he having transacted business for the testator in his lifetime), represented to complainant that if this settlement was made and said note and mortgage given, there could be no contest of the will; that neither the Jubar heirs nor any other persons interested could contest the will in case the mortgage was given, and that he subsequently represented, when a contest was made, that the note and mortgage had been destroyed. These representations were denied by Mr. Court-right and other witnesses who were present, who testified that what he did say was that, in his opinion, the Jubar heirs and others could not successfully contest the will, and that he never represented or stated to the complainant or her attorney that the note and mortgage had been destroyed. It appears, we think, from the evidence that the defendant and her sister, in good faith, intended to contest the probate of the will, claiming that it was not only unjust, but that the testator was mentally incompetent to execute it, and that the consideration for the making of the note and mortgage was that they should desist from contesting the will, and consent to its probate. It is undisputed that they not only did not contest the probate of the will, but that they rendered such assistance as was in their power, by way of furnishing documentary evidence and the employment of counsel, in the allowance of said will, an,d the same was- duly allowed in both courts, and the contestants were defeated. In our opinion the burden of propf upon these contested questions was not sustained by the complainant at the hearing. The consideration for the note and mortgage appears to have been that the defendant and her sister, Maud Gilmore, should make no contest of the will, but should consent to the admitting of the same to probate. It is, we think, well settled in this State that legatees under a will, and persons having such an interest in the estate as to entitle them to contest the instrument, may make valid agreements to forbear a contest, and such contracts are favored by the law when made in good faith. Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154). A contract, whereby one interested in defeating the probate of a will agrees to interpose no objection thereto, is not void as against public policy, unless made eollusively and in fraud of other parties interested in the estate. Grochowski v. Grochowski, 77 Neb. 506 (109 N. W. 742, 13 L. R. A. [N. S.] 484 and note, 15 Am. & Eng. Ann. Cas. 300). Neither by the pleadings, proofs, nor briefs of counsel has the question been raised whether this promissory note and mortgage were void as opposed to public policy, so as to bring the case within the principle announced in Conklin v. Conklin, supra, and we have not considered that question for the reasons stated, and we herein express no opinion upon that question. Upon the hearing in the court below the bill of complaint was dismissed and complainant has appealed; and it is urged by complainant’s counsel that if this court should find that there was not a total failure of consideration for such note and mortgage, that at least relief should be granted complainant to the extent of allowing her two-thirds of the expense of the litigation in establishing said will under that portion of the agreement, above quoted, which reads as follows: “It is further agreed that each of the parties hereto shall each pay one-third of all probate and administration expenses of the will of said Jacob Woodman.” The answer does not claim the benefit of a cross-bill, and does not ask to enforce or foreclose this mortgage. In our opinion the pleadings are not so framed, as to entitle the complainant to this relief in this suit. The bill is not framed according to any theory of an abatement or reduction of any portion of said mortgage for the reason urged; and, as the record stands, there appears to be no warrant for modifying the decree below, as asked for. Agar v. Streeter, 183 Mich. 600, 609 (150 N. W. 160, L. R. A. 1915D, 196). Should the mortgagee proceed to enforce or foreclose this mortgage, this defense under the agreement would doubtless be open to complainant. It appears that no part of the mortgage debt has been paid, and that four installments of $500 each, with interest, are now past due. This record discloses a sharp conflict in the testimony of the attorneys who tried the instant case in the court below. They both testified in the case. Other counsel for the defendant in the brief filed in this court, in commenting upon this conflict of testimony, asks this court to go entirely outside the record and inquire as to the character and standing of the respective attorneys, by consulting Martindale’s American Law Directory, and their respective ratings therein are stated at length in the brief. This is a most unwarranted and improper statement to appear in a brief filed in this court. Such practice is indefensible and cannot have the sanction of the court. Such reference should be eliminated from the brief, and perhaps would justify the court in striking the entire brief from the case. The decree of the court below is affirmed, with costs to the defendant. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

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Champlin, J. This is an action of replevin, brought by the plaintiffs as copartners under the firm name of "West Bay City Manufacturing Company against the defendants, to obtain possession of certain white pine saw-logs. The declaration was in the usual form in replevin. The defendants interposed a plea in abatement, and upon this plea issue was joined. Objection is raised upon the argument that the plea does not possess the requisite allegations as to certainty required in pleas of this nature: No demurrer was interposed, and the objection comes too late after judgment. The gist of the plea is that a prior writ of replevin had been issued out of the same court, for the same property as that described in this writ, at the suit of said William C. Busch, one of the defendants in this suit, against the said Spencer O. Fisher, together with George L. Burtis and Timothy Nester, as defendants; that the writ was executed and the property delivered to Busch, and he executed and delivered to the sheriff the requisite bond; that Busch filed his declaration in that suit, and the defendants therein appeared and pleaded the general issue; that this is a cross-replevin, and the writ was issued at the suit of the same Spencer O. Fisher, together with Albert A. Crane and- Frederick Cole, and against the same William O. Busch, together with Arthur Hill, Eben N. Briggs, and Edward E. McCarty, and the same property retaken and turned over to the plaintiffs in this suit; and that this suit seeks to raise the same issue as exists in the former action, and is between the same parties, or their privies. Hpon the trial a written stipulation was filed, admitting the following facts: “ 1. That the logs involved in this suit, and described in the writ and declaration therein, were taken from the possession of Timothy Nester, September 16, 1885, by the sheriff of Marquette county, upon a writ of replevin in due form, and with the proper affidavit attached thereto, duly issued out of said court on that day, wherein William O. Busch, one of the defendants in this case, was plaintiff, and Timothy Nester, Spencer O. Fisher, and G-eorge L. Burtis were defendants. Said Spencer O. Fisher is the same person who is one of the plaintiffs in this case, and the logs involved in this cause are the same as those involved in said first suit, and described in the writ and declaration therein. “At the time of the taking of said logs on said writ of replevin, on the sixteenth day of September as aforesaid, said Timothy Nester was in the possession thereof as the agent of the West Bay City Manufacturing Company, a partnership composed of the plaintiffs in this suit, who then claimed to be the owners of said logs, and they were on that day delivered by said sheriff to said William C. Busch on his giving to said sheriff a bond as required by law. “ Said first replevin suit was pending on the merits, and was-undetermined, though no service had been made on the defendant Fisher, at the time this suit was commenced. Issue on the merits was thereafter joined in said first suit, and a verdict and judgment were rendered therein on the second day of January, 1886, in favor of the plaintiff, William O. Busch, against the defendants-Timothy Nester and Spencer O. Fisher, they having appeared and pleaded therein, and a writ of error has been duly sued out of the Supreme Court by said Nester and Fisher to remove said cause to the Supreme Court. “ 2. The writ of replevin in this cause was sued out in favor of the plaintiffs herein, and against the defendants, on the seventeenth day of September, 1885, the said plaintiffs-claiming the said logs as partners doing business under the name of the West Bay City Manufacturing Company, and said logs were on the same day taken from the possession of said Busch by the sheriff upon said writ of replevin, and delivered to the plaintiffs in this case; they having given said sheriff a bond as required by law. . “ 3. It is further admitted, for the purposes of the trial of the issue joined on the plea in abatement in this cause, but for no other purpose, that the plaintiffs in this cause, before the sixteenth day of September, 1885, purchased from said Timothy Nester, who before that claimed to be the owner thereof, all the right, title, and interest said Timothy Nester had in said logs, and that, after such purchase, said plaintiffs, as such partners, and at the time of the commencement of said first replevin suit as well as of this suit, claimed to be the absolute owners of said logs, and entitled to the possession thereof, and were the owners of all the title thereto that said Nester had before their said purchase.” The other testimony in the case consisted of the files and records in the two replevin suits.' The judge charged the jury as follows: “Gentlemen of'the Jury. The plaintiffs in this case, Spencer O. Fisher, Albert A. Crane, and Frederick Cole, brought a suit in replevin against William C. Busch and others to recover from the defendants certain pine logs or timber set forth in the declaration. The history of this timber, as appears by the stipulation of facts in this case^ is this: Timothy Nester had possession of this property, in connection with others here, in the water at Marquette. William C. Busch claimed the right to the possession of that property. On the sixteenth day of September, 1885, he brought his suit against Timothy Nester, Spencer O. Fisher, and Mr. Burtis to recover' possession of these logs. The writ was placed in possession of the sheriff. The sheriff proceeded to execute the writ, took possession of the logs, had them appraised, and William O. Busch, the plaintiff in that suit, gave the replevin bond required by law to be given in such cases; and thereupon the property was turned over to the plaintiff in the suit by the sheriff. Spencer O. Fisher, it appears, one of the defendants in that suit, had associated with him Albert A. Crane and Frederick Cole, under a partnership carried on under the name of the West Bay City Manufacturing Co., at the time of the taking of these logs from the possession of Mr. Nester. The stipulation shows that Mr. Nester took possession of these logs as agent of Spencer O. Fisher and his copartners. On the following day after the replevin by Mr. Busch, viz., on the seventeenth day of September, 1885, Spencer O. Fisher and his copartners brought their writ of replevin against William C. Busch and others to recover back the possession of the property. The defendants in this suit claim that that was what is known as a cross-writ of replevin,, and I charge you, gentlemen, under the facts in this case,. Spencer O. Fisher being one of the defendants in the first suit, and one of the plaintiffs in this suit, that this suit is across-replevin, and the plaintiffs cannot maintain it. “It is the law that where one party claiming the possession to pioperty has brought his writ of replevin, given his bond, as between all the defendants in that suit and those who are associated with them, the title to that property is to be decided in that first suit, and the plaintiff who has brought that suit, and given his bond as required by law, is entitled to the possession of it until his rights are litigated in court in that suit; and any attempt on the part of either of the defendants in that suit, by associating copartners or other persons with him, to maintain another suit to get it back, will not be tolerated in any court of law. It is therefore a cross-writ of replevin, and the plaintiffs in this case had no right to bring this suit in replevin, and I charge you, therefore, to find a verdict for the defendants in this case.” The only errors assigned are the following: 1. In the oral charge of the circuit judge to the jury, where said circuit judge says: “Under the facts in this case, Spencer O. Fisher being one of the defendants in the first suit, and one of the plaintiffs in this suit, that this suit is a cross-replevin, and the plaintiffs cannot maintain it.” 2. In • said oral charge, where said circuit judge said: “ I charge you, therefore, to find a verdict for the defendants in this case.” We think the evidence shows that this suit is a cross-replevin. The real issue to be tried in both suits involves the title to the logs. No possessory rights independent of ownership are involved. In the first suit, Busch claimed the title as against Nester, Fisher, and Burtis. The plaintiffs in the second suit claim to be the absolute owners as against Busch and his co-defendants. It appears that they claim such ownership as partners, and through a purchase from Nester prior to the issuing of either writ, and that Nester was in possession as their agent. It is plain, therefore, that the title of Busch, and the title of the firm of which Fisher was a member could be litigated in the first suit, and that he could show the title and ownership of the property in the firm of which he was a member, and this would constitute a complete defense, and authorize a judgment for a return of the property. No more can be done in the second suit. The same issue is involved,, and is made out by the same evidence. That the parties to both suits are not identical is unimportant, unless such new parties claim rights or interests dif ferent from or independent of those claimed by the parties to the first suit. We perceive no error in the charge of the court, and the judgment is affirmed. The other Justices concurred. See Busch v. Nester, 62 Mich. 381; also, 38 N. W. Rep. 458.

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Morse, J. The plaintiff sues for the value of a horse killed by the cars upon the track of defendant. The action was brought in justice’s court, and appealed therefrom to the circuit, where, upon a trial before the court, without a jury, the plaintiff recovered. The horse escaped upon the track from the premises of plaintiff through a defective fence. The plaintiff claims it was the duty of the defendant to erect and maintain this fence, which the defendant denies. This is the sole point to be determined. From the findings of fact by the circuit judge, Hon. Chauncey Joslin, it appears that the plaintiff keeps and cultivates a farm in the township of Frenchtown, in Monroe county, through which the defendant’s railroad track and right of way extend. On the aforesaid premises of the plaintiff the track of the defendant’s road crosses a highway; it does not cross at right angles, but diagonally. When the defendant fenced the track it acted upon the assumption that the highway was four rods in width, and on each side of the highway built fences along a line two rods distant from the center line of said highway, as surveyed, to the cattle-guards upon the track. The highway as used, however, was not four rods wide, and the plaintiff’s road fence was only fifteen feet and two inches from the center of the highway, as traveled and surveyed. This left a jog or break between the highway fence, as built by the defendant, and the road fence of the plaintiff, of 25.5 feet. The plaintiff built a pole fence extending from the corner of his fence across this distance to the fence of the railroad company. The defendant assumed that it was no part of its duty, under the law, to maintain a fence across this space, and the plaintiff therefore kept it up until the killing of the horse. The horse escaped through this pole fence, and was killed on the track between the cattle-guards. The highway in question was laid out in 1832, by two commissioners of Frenchtown; but the records as found in the town clerk’s office are defective, and show no jurisdiction obtained by said commissioners. But the highway has been used and traveled for over 40. years. The center line appears by such records to have been surveyed, which survey is now on file in the clerk’s office. This center line was used as the guide of the defendant in erecting its highway fence. Where the railroad crosses the highway is a turnpike, which is built almost exactly upon the center line of the highway, as surveyed in 1832. The highway is not four rods wide anywhere between fences along its whole route. The land of the plaintiff has been fenced to the highway, as it was at the time of the killing of the horse, for a period of 30 years or more, and the pole fence was built by the plaintiff about 15 years ago. The defendant contends that under the statute law of this State all public roads have been required to be four rods wide since 1827 to the present time, excepting about one year, from 1857 to 1858; that this law applies to highways that have become such by user, as well as to those regularly laid out under the statute; and that the road fence of the plaintiff must be considered as an encroachment upon the highway, and that he could not acquire the land, within the four-rod limit of the highway, by user, as against the public. The plaintiff claims that the highway was not regularly laid out, and is a public road by user only; and that it ex- Ms as sucb highway just so far as it has been used, and can extend no further than the user. It makes but little difference, practically, as regards the rights of the contending parties, whether the highway in question was regularly laid out under .the statute or acquired by user. If regularly laid out in the first instance, it appears very ■clearly from the finding of the circuit judge, who finds the facts as stated by a witness, S. M, Bartlett, that the land included within the plaintiff’s fence has never been opened and worked as a highway; and the plaintiff by long occupation has acquired the title to such land as against the public. It has been settled in this State that a highway can be partially discontinued by non-user, and that it stands, as against long possession, no better than any other property. Gregory v. Knight, 50 Mich. 61, 64. On the other hand, if it is a highway by user only, it can extend no further than it has been used. Wayne Co. v. Miller, 31 Mich. 447, 449; Pratt v. Lewis, 39 Id. 7, 12; McKay v. Doty, 63 Id. 581. We are referred by the counsel for defendant to section 1315 of Howell’s Statutes, which provides as follows: “All highways regularly established in pursuance of existing laws; all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not; and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or.more, - — shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act. All highways that are or that may become such by time and use shall be four rods in width; and, where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rods in width on each side of such lines.” —In support of the proposition that this highway if acquired by use must be four rods wide. But the clause in the statute making such roads four rods wide was adopted in 1881, after the highway in question had become a public road by user. It was held in Bumpus v. Miller, 4 Mich. 159-163, that a highway acquired by user under the provisions of the Constitution would be four rods in width, unless the dedication or donation implied by the user was expressly or impliedly restricted by the owner. In this case the fact that the road was never opened and worked by the authorities inside of the line of the plaintiff's fence, but outside of it; that the public use and travel have also been outside of such fence, the plaintiff for over 30 years cultivating and holding the premises as his private property, and subject to no easement of the public, — is sufficient to rebut any presumption of any donation or dedication of the same to the public, and conclusive evidence of an intention to restrict the road to the space outside of his fence. The Legislature, in my opinion, in 1881, could not alter or change the vested rights of the plaintiff in the premises. It would be taking the land of the plaintiff, without compensation, for public use, and without his consent. McKay v. Doty, 63 Mich. 581. The line of the highway must be considered to be the fence of the plaintiff. It was, therefore, and is the duty of the defendant under the law to erect and maintain a proper fence along the line of the pole fence through which the horse escaped. The judgment of the court below is affirmed, with costs. The other Justices concurred. See Lyle v. Lesia, ante, 16.

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Morse, J. The respondent was arraigned in the superior court for the city of Grand Rapids upon an information charging him with having committed an assault upon one John Bork with the felonious intent to do great bodily harm less than murder. Before the commencement of the trial, he, by the leave of the court', withdrew his plea of not guilty, which had been entered pro forma; and his attorneys moved the court to quash the information on the. ground that the respondent had never had a preliminary examination, or waived such examination, as provided by law, and that the witness claimed to have been examined upon an alleged examination did not sign his evidence given upon such examination. The motion was overruled, and the respondent required to-plead, and, thus constrained, he pleaded not guilty. The trial then proceeded, and he was convicted upon such trial of the offense charged in such information. The case is brought, here upon exceptions before judgment, under the statute. The verdict must be set aside, and the respondent discharged. The record shows that, upon the examination of said John Bork, the principal witness against the respondent, in the police court of the city of Grand Rapids, and the only witness whose testimony upon such examination appears in the record, the said Bork did not sign his testimony, so given in the said police court, as required by the positive terms of the statute. The case is governed by the previous decisions of this Court. People v. Smith, 25 Mich. 497; People v. Chapman, 62 Id. 280; People v. Gleason, 63 Id. 626. It is not necessary to consider the other errors alleged to have occurred on the trial. The respondent is discharged because he has had no preliminary examination, or waived the same; but this discharge will not prejudice new and further proceedings against him for the crime charged. Campbell, C. J., and Champlin, J., concurred. Sherwood, J. I do not think this conviction should be reversed for the cause stated in this opinion, but I concur in the result.

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Morse, J. In this case the court below directed a verdict for the defendant, and the sole issue in this Court stands upon the correctness of this ruling. The plaintiff lives in Trenton, and, at the time of his injury, was 30 years of age. He had worked in the stock-yards at Grosse Isle for the defendant about a year. His duty there was to unload stock from the cars, feed them, and reload them. The switchmen, with a pony engine, would bring the cars containing the stock to him. He had worked also at the same business in the stock-yards in the city of Detroit. He had been employed in all about two years. The stock-yards were in the railroad yards of the defendant. On the twelfth day of November, 1882, he was set to work by an agent of defendant as second switchman in making up trains in the yard, shifting cars with a pony engine in the railroad yard at Grosse Isle. He had no experience in switching at the time of this employment. The yard-master hired him on Saturday evening, and told him he would show him how to do the work. He did show him the next day, but said nothing to him about a defective draw-head in the engine, which plaintiff claims was the cause of the injury. The front draw-head of the engine was a perfect one, but the one at the rear was defective. It was a double draw-head, but the division between the upper and lower openings had a Y or wedge-shaped piece broken out, so that upon a casual glance it looked like a single opening. The plaintiff went to work with this engine on Monday, November 13, and did day duty that week. This engine had no tender attached, and no cow-catcher. It was used in pulling cars in the yard, and would be coupled to them, at both ends. The two divisions in the draw-heads were used to meet the heights of different cars without crooked links. Plaintiff’s day duty consisted in following this engine, and doing as he was ordered in opening and shutting switches or coupling cars. The cars were mostly coupled, however, by the head switchman, known as the conductor. During such day duty plaintiff testifies that he coupled cars in front, — on the front part of the engine, — but made no coupling at the rear end, where this defective draw-head was situated. He had never examined that draw-head, and did not know that it was defective; supposed it to be all right. On the night of November 19, 1882, he was switching in the yard. About 11 o’clock the yard-master directed him to-go to switch No. 1 and draw out a car. He went, and, in-coupling the car to the rear end of the engine, got his hand caught in this defective opening, or break in the division between the two openings, and crushed, losing three fingers,, and otherwise maiming the hand. He says he stood upon the tail-board or foot-board of the engine. He had a lantern in one hand, had set the pin up in the draw-bar, and signaled the engine to back. As the car came up, without looking at the draw-head particularly, he undertook to enter the link. He claims it caught in this-broken wedge-shaped place. The force of the engine twisted it sideways, and caught his hand. He had never before looked at the end of this draw-bar; and, when he endeavored torn ake the coupling, says: “I didn’t look at the draw-bar. I supposed it was all right.” “ Q. If you had looked .for it, you could have seen it? “ A. I couldn’t see it from the step. You couldn’t have seen it unless you had looked right into the draw-bar. * * “ Q. You say you had every reason to suppose that the draw-head was all right? “A. Yes, sir. “ O. So you didn’t care to see for yourself? “ A. No, sir. cc Q. Then you gave the signal to move back? “A. Yes, sir. “ Q. If you had had an opinion that there was a break in that draw-head, you might have made the coupling, and not been hurt? “A. Yes, sir; if I had known about it, I would have looked out for it.” On redirect he further testified: “ Q. Y ou could have made this coupling without any accident if you had known of the break? “A. If I had known of it, — that there was danger, — I should have looked out for it, — if I had known it was broke.” Plaintiff also testified that he could not look into the draw-bar from where he stood when coupling, and that this was the first time he had attempted a coupling at this end of the engine. John Dougherty, a witness for the plaintiff, testified that he was employed in the yard at the time of the injury to the plaintiff, and was familiar with this engine and draw-bar, and that the yard-master and conductor knew it was broken; that witness knew it was broken a month before the accident. On cross-examination he said the break could be seen as one looked at the draw-head; that he and others used it, and, by taking care of it, it worked all right. The plaintiff, being recalled, further testified as follows: “ Q. I think you testified yesterday, in answer to Mr. Russel’s question, that you might have observed this break in the draw-head under some circumstances. Now, will you state whether you desire to explain more fully in reference to Uiat answer you gave? [Objected to by defendant’s counsel.] “ Q. Will you state about your ability to see that break? “ A. If I could have seen it, I might not have noticed it. “ Q. Why not ? “ A. For I might not have known but what it was a per- feet draw-head; for there is a draw-head with one hole, and one with two; and I might not have known but what it was a perfect draw-head. “ Q. In the condition that draw-head was at the time you made that coupling, will you state whether or not it was extremely dangerous? “ A. It was, by what I heard by the railroad men after-wards. They said it was dangerous. “ Q. Will you state whether or not a casual glance at that draw-head would have disclosed its defect to you? “ A. Yes, sir; it would. “ Q. I don’t think you understand my question. You have just stated that you probably would not have observed the break in the draw-head, inasmuch as you are not familiar with draw-heads? “A. Yes, sir. “ Q. Now, will you state whether or not it would have been necessary for you to have made a close inspection of the draw-head in order to have discovered its defects? “A. It would have been if I could not see it. The slot was inside of the draw-head, — broken clear inside of the draw-head. It was hollowed off in the back part, — open holes. “ Q. As I understand your answer, this apartment in the draw-head, making a distinct compartment, was so broken out that if you had merely looked at it you might have supposed it was a perfect draw-head with one opening only? “A. Yes, sir.” The plaintiff offered to prove, by additional witnesses, that the engineer and conductor of the pony engine and the yardmaster had knowledge of this defect in the draw-head; that the draw-bar was not changed before this accident because the defendant had none to put in its place; he also offered to prove the pecuniary damage suffered by him on account of said injury, — all of which testimony it was conceded could be given; but, granting it, the court held that the plaintiff was not entitled to recover, and therefore declined to receive it. The circuit judge thereupon ordered a verdict for the defendant. The court below was right in this direction. The plaintiff was a man of mature years, and had been about railroads and cars enough to know that coupling cars was, at best, a dangerous employment, unless proper care was taken. He made, or undertook to make, a coupling in a draw-head that he had never looked at, although working about the engine for nearly a week. He undertook to insert the link without caring to look or glancing even casually at the draw-head, acting on the supposition that it was all right. This was in itself great negligence. It is not clear, by any means, that the break caused the accident. If it happened as he says it did, and the link caught in the break, then it is apparent that if the break had not been there, and he had undertaken to put the link in, precisely as he did, without looking, it would have come in contact with the end_of the division between the two openings, and produced precisely the same result. The force of the engine would have thrown the link up sideways, and caught his hand. There was no more danger with this break, if he had his eyes upon it, than there was without it. The injury happened solely because he did not look to see where he was holding the link with reference to the openings in the draw-bar. It cannot be said, even if the defective draw-bar contributed to the injury, that plaintiff •employed the usual and customary means to guard against accident. The plaintiff endeavors to excuse himself for not looking, on the ground that, if he had so looked, he might not have known but what it was a perfect draw-head, “for there is a draw-head with one hole, and one with two,” and he might have thought it only had one opening. This is altogether too speculative to avail him against his obvious carelessness in not looking at all. He did not even give it a “casual glance.” It was his duty to exercise reasonable care in the performance of his work. In working five or six days about this engine, without examining this draw-head, which he must have known he was liable to use at any moment, and at tempting to make his first coupling without even looking to see if he was holding the link so it would enter the opening, or to notice whether it had one opening or two, he was not exercising any degree of care, and was grossly negligent. He must suffer because of his own carelessness, and cannot recover from the defendant. The judgment of the circuit court is affirmed, with costs. The other Justices concurred.

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Sherwood, J. The bill in this case is filed by the complainants, who are the heirs of James P. Pendill, deceased, against the defendants, to remove a cloud from the title of some mining property described in the bill, situated in the county of Marquette, and to restrain by injunction the removal by the defendant of machinery from the mine, which had been previously leased to John Burt, with the land containing the same. The mine had been opened and worked when the lease was given by Mr. Pendill and wife to Mr. Burt, which evidently contemplated the discovery of ore at other places on the leased land, and that it should be opened and mined. The lease was made on the first day of May, 1880, and was to continue 19 years and 8 months, and was to be in force that length of time, provided John Burt, his representatives or assigns, should pay to James P. Pendill, his representatives or assigns, 50 cents per gross ton as, a royalty for each and every ton of 2,240 pounds of iron ore mined and shipped or carried away from the land in question. It is further provided in the lease that John Burt, his representatives or assigns, should pay to James P. Pendill, his representatives or assigns, at least 82,000 per annum in each and every year, as a royalty or rental, irrespective of the amount of ore that should be mined, and whether the ore actually mined, at the rate of 50 cents per ton royalty, would equal that amount or not. It was also agreed that John Burt, his representatives or assigns, should, on the fifth of each month, report to Pendill, his representatives or assigns, the full amount of ore mined and carried away from the land during the previous month, and that he should at the same time pay for the iron ore so mined at the rate mentioned. It also appears from the lease that it was agreed that said Burt, and his representatives or assigns, should pay all taxes, general and special, that should be levied upon said property during the continuance of the lease. The lease also provides that if Burt should fail to pay the said royalty as specified, or any part thereof, or should be behind in his payments, according to the terms specified,— “ For the space of ten days thereafter, or in case of the non-performance oj any of the covenants made by the said Burt, then, and irom thenceforth, it shall and maybe lawful for the said Pendill, his heirs and assigns, into the said demised premises, or any part in the name of the whole, without any previous notice whatever, to re-enter, and the same to have again, repossess, and enjoy.” Mining operations were carried on under this lease for a time by individuals. After the Union Mining Company was organized, and on the sixteenth day of December, 1880, the lease was assigned to it, and the defendant carried on the mining business on the leased property until February, 1883, when it was suspended by the mining company. At the time of the suspension, the mining company gave a chattel mortgage on the mining tools, engine, etc.j to Bichard Bryant, in trust, to pay employes of the company to the amount of $5,-192.47. Hiram A. Burt was the president and manager of the company at that time. On the twenty-first day of June, 1883, the property covered by the Bryant mortgage was sold, at public sale, to Sarah B. Burt, wife of Hham A. Burt, for the sum of $2,000. On the ninth day of February, 1883, the company gave a mortgage on its leasehold interest to one Henry Merry, as trustee, to secure the sum of $5,000; and upon the first day of September, 1883, the company executed to Matthew H. Maynard, as trustee, notes amounting to $50,000, secured by mortgage upon this same leasehold interest. Both Maynard and Merry, as trustees, are made defendants in this case. The property was all kept on the leasehold premises. Sarah B. Burt claims the Tight, through- Hiram A. Burt, to remove the property purchased at the chattel-mortgage sale, and also the right to remove the engine and hoisting drums placed by Mr. Pendill at the mine upon the property before the lease of the property was made; and Mrs. Burt was made a defendant, that she might be enjoined from making such removal. During the time the company carried on the business of mining it expended about $10,000 in equipments, and about the same amount in explorations, both in the mine and on other parts of the property, and the lessor received about $13,000 in royalties. No rent, taxes, or royalty was paid by the company after the year ending May 1, 1883, and it failed to make any monthly reports, as required by the lease, thereafter. The defendant company having ceased all mining business upon the premises, and removed the pumps and pipes out of the mine, the property presenting the appearance of having been abandoned, the lessor, James P. Pendill, went to the property, and, not finding it in the custody of any one, or any one claiming control thereof, without giving any notice to any one, took possession of the property, locked up the boiler-house and engine-room, and other buildings, with all the machinery and tools therein; and, from that time to the present, he or his heirs have continued such possession. Mr. Pendill died in March, 1885, and the complainants, his widow and heirs, bring this suit. The foregoing contains the material facts in the case. Considerable testimony was taken in open court, before Judge Grant, who heard the cause, and rendered a decree therein declaring the leased property free and clear of all liens and incumbrances, and the lease canceled, and null and void. The decree further dismissed the bill against Sarah B. Burt, without prejudice to complainants to have their right® as against her adjudicated at law. Costs were given to the complainants against the defendant company, and against, them in favor of Mrs. Burt. The Union Mining Company alone appeals. The provisions of the lease under which Mr. Pendill proceeded to recover possession of his property, and to relieve it from the incumbrance of the lease, are found in the following clause. After stating the terms and various provisions, it says: “ Provided always, and these presents are upon the express-condition, that if it shall so happen that the rent above reserved, or any part thereof, or the taxes or assessments to be paid by the said party of the second part, be behind and unpaid at the times or on the days above mentioned for the payment thereof, and for the space of ten days thereafter, or in case of the non-performance of any of the covenants made by the said party of the second part, at any of the times mentioned for the performance thereof, thence and from thenceforth it shall and may be lawful for the said parties of the-first part, their heirs and assigns, into said demised premises, or any part in the name of the whole, without any previous-notice whatever, to re-enter, and the same to have again, retain, repossess, and enjoy, and the said parties of the second part, its successors, and all other tenants and occupants of the-said demised premises, or any part thereof, thereout and therefrom, utterly to expel, put out, and remove; and from and after such re-entry made, this lease, and every part, thereof, shall cease and be absolutely void as respects the-covenants to be performed by the said parties of the first, part.” There is no question, I apprehend, in this case, but that-the defendant company failed to perform the covenants contained in the lease. Counsel for defendant, however, contend that, even if this: be so, such failure was not alone, nor with all that was done-by Mr. Pendill, sufficient to annul the lease, and destroy the-rights of the defendant company as tenant of the property-in question. It will be noticed, that the parties to the lease expressly provide, in ease oí failure to pay rent, taxes, or royalty, that the lessor may, “ without any previous notice whatever,” reenter, repossess, retain, and again enjoy the demised premises ; and it further provides that such re-entry and possession may be made by “entering upon a part of the premises in the name of the whole,” and further provides that, “from and after such re-entry made, this lease, and every part thereof, shall cease and be null and void.” Upon a full inspection of the record, we are satisfied that, after the failure of the defendant company to perform the covenants of the lease on the part' of the lessee, the lessor made such entry, and when such entry was made and possession taken the lease became void. Any other construction would, be doing gross injustice to the language used in the lease, and to the expressed intention of the parties. It is insisted by the learned counsel that a demand for the rent or royalty due was absolutely necessary before the lessor could lawfully re-enter. This was true at common law, and is equally so by our statute (see Com. Dig. “Rent,” D 3 (a); 18 Vin. Abr. 482; Bac. Abr. “Rent,” I; Doe v. Wandlass, 7 Term R. 117; How. Stat. § 8295); but, both at common law and by statute, such demand can be waived by the parties. No notice of re-entry, or of the intention to re-enter, was ever necessary in either case. It is very evident that something was intended to be waived wherein the lease says that the lessor may re-enter and repossess himself of the premises “ without giving any previous notice whatever.” It certainly was not notice of an intention to re-enter, because there was nothing of that kind to be waived. There was nothing but the demand of payment of rent or royalty to be waived, and it is quite manifest to us that the notice that he was required to pay the rent or royalty, which was then in arrears, was what was intended to be and really was waived. A demand for rent is no more or less than a notice that payment is required to he made. It will be seen that the clause in the lease waives every kind of notice. We think the position taken by the learned counsel for the complainants is correct, that— “ The contract itself governs as to the mode of the termination of the lease, under common-law rules; but, the lease being terminated, the mode of procedure to get possession by summary action is necessary to gain possession, and should be in accordance with statutory requirements. In this case, notwithstanding the lease gave the lessor the right to terminate the lease without any notice whatever, if it became necessary to take proceedings to gain possession, it must have been by summary proceedings, or by an action of ejectment, according to the requirements of statute. But that does not affect the question of forfeiture of the lease. That is simply the question of the mode of gaining possession. The lease being an optional one with the lessor to forfeit or not for condition broken, it was simply necessary that the lessor should, in a positive manner, assert his election to declare the lease forfeited, and that ended the lease. This he did, by taking possession when he found the property in the condition that it was, and by telling the general manager of the defendant company that he had nothing further to do with the property.” The re-entry and taking possession by the lessor was the mode agreed upon by the parties to the lease by which the election to forfeit should be declared. The lessor had the right, and it was his duty in the first instance, to resort to it, and, if prevented in so doing, it 'was his privilege to adopt any other lawful mode, and take the statutory or any other appropriate legal proceedings to obtain possession. He was not, however, prevented from taking possession under the terms of the lease. If there was no provision in the contract as to the mode of making known the election to forfeit, it would have to be done in accordance with the recognized rules of the common law, as modified by the statute. We think the record shows the possession of the lessor rightfully and not forcibly taken. “The party entitled to the possession of property has the right to take it in any manner that does not involve a breach of the peace, and it was never the design of the statute to take away that right.” Hyatt v. Wood, 4 Johns. 150; Jackson v. Farmer, 9 Wend. 201; Low v. Elwell, 121 Mass. 315; Mussey v. Scott, 32 Vt. 82; Sterling v. Warden, 51 N. H. 217; Stearns v. Sampson, 59 Me. 568; Kellam v. Janson, 17 Penn. St. 467; Overdeer v. Lewis, 1 Watts & S. 90; Page v. De Puy, 40 Ill. 506; Latimer v. Woodward, 2 Doug. 368; Harrington v. Scott, 1 Mich. 17; Seitz v. Miles, 16 Id. 456; Hoffman v. Harrington, 22 Id. 52; Farmer v. Hunter, 45 Id. 337. The mere receipt of rent due before forfeiture, after the lease had been forfeited, will not be a waiver of forfeiture. Jackson v. Allen, 3 Cow. 220; Stuyvesant v. Davis, 9 Paige, 427; Bleecker v. Smith, 13 Wend. 533. And, certainly, the mere payment of rent or royalty, unless fully paid, would not waive the forfeiture, as it would be a continuing cause of forfeiture. Tayl. Landl. & Ten. § 500; Alexander v. Hodges, 41 Mich. 691; Doe v. Woodbridge, 9 Barn. & Co. 376; Doe v. Allen, 3 Taunt. 78; Doe v. Jones, 5 Exch. 498. Counsel for defendant further insist that the object of the bill is to declare a forfeiture of an estate for non-performance of a condition subsequent, against the rule that equity will never enforce a penalty or forfeiture. We do not think this is the proper view to be taken of the bill. The bill treats the lease as a void incumbrance, under which the defendant company, by its claims thereunder, clouds the complainant’s title. The court is not asked to declare the forfeiture, but to ascertain whether or not a completed forfeiture exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has been done, and, if so, to declare its effect upon the title to complainants’ property. It is further said that, even though there has been a forfeiture, a court of equity will relieve the tenant therefrom. Equity has jurisdiction in such cases, but the defendant company is not before us asking any such relief, and tbe subject cannot be further discussed. Upon a review of the case, and briefs of the learned counsel who argued it, we think the circuit judge reached the correct conclusion, and his decree must be affirmed. The other Justices concurred.

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Fead, J. Some time after 7 o’clock in the evening of August 17, 1927, an overcast, cloudy night, so dark that drivers had their headlights on, Joseph Baiun, 8 years old, was sent by his parents to carry a two-quart pail of milk to a neighbor. He was next discovered lying on the east side of public highway U. S. 12, which runs north and south. He. was dead, with his skull fractured and his neck broken, either of which injuries would have caused instant death. The milk pail was found 75 or more feet south, with a deep dent in it and the handle bent. There were no' eyewitnesses to the accident. Defendant drove north on the road about the time of the injury to decedent. A mile north of where Joseph was found, defendant came upon a wagon going north, attempted to turn to the left, saw another car approaching, and to avoid an accident turned to the right, lightly struck the wagon, ran across a small ditch into a field, attempted to drive out but could not, and remained there for some time, his car headed south. Immediately before defendant struck the wagon a car passed him going south, and the occupants testified they met no other vehicle before they reached the boy. As they came to where Joseph was lying, another car drove up. Some of the occupants of the two cars summoned a deputy sheriff, physician, and undertaker. After examining the boy, the deputy'sheriff and physician went to where defendant’s car was stalled in the field. They testified they found milk on the radiator and windshield of the car, smelled warm milk, found hair on the car which corresponded in color and texture with Joseph’s, and discovered a dent in the radiator about the size of the boy’s head, with hair in it simi lar to his. Others examined the car in the field and at the jail and gave corroborating testimony. There was also evidence that defendant was excited, said he had been going to Chicago, which was south, and that if he hit the boy, he did not know it. This evidence, while' disputed and explained in many respects, required the court to submit to the jury the question of whether defendant’s car struck decedent. The claims of negligence submitted to the jury were: (a) That defendant was driving at an unreasonable rate of speed; (b) that he did not have the car under reasonable control; and (c) that he did not keep a proper lookout. There was no direct evidence of negligence. But negligence may be proved by circumstantial evidence. Burghardt v. Detroit United Railway, 206 Mich. 545 (5 A. L. R. 1333). The jury may draw legitimate inferences from established facts, and to do so is not to speculate or guess the facts. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464. As there were no eyewitnesses to the injury, the law raises the presumption that decedent was in the exercise of due care. Contributory negligence was not a question for the jury. The driver of an automobile has the duty, not only to keep a lookout ahead and to have his car under control, but also to drive at such speed that he can stop within the range of his vision. The latter is a rule of safety. Ruth v. Vroom, 245 Mich. 88. Assuming, from the verdict, that defendant’s car struck decedent, and from the presumption of law, that decedent was in the exercise of due care, it is a legitimate inference, if not an inevitable conclusion, that defendant was guilty of one or more of the acts of negligence charged against him. If he had kept a proper lookout, had his car under control and could have stopped within the range of his vision, he necessarily would have seen decedent and have stopped in time or driven around him. The alternative is the incredible hypothesis that defendant seasonably saw decedent and ran him down. The injury could not have occurred with both defendant and decedent exercising due care. Defendant’s negligence was for the jury, and its finding that he was negligent was not against the great weight of evidence. We have considered the other assignments of error briefed by counsel, but they are so plainly without merit as to require no discussion. Judgment for plaintiff is affirmed, with costs. North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.

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Fellows, J. Plaintiff filed its bill in the circuit court for the county of Wayne in chancery to reform the description in a land contract between it and defendants. Defendants appeared and filed an answer admitting error in the description and consenting to the correction, and by way of cross-bill in their answer prayed for rescission of the contract alleging many breaches of its terms. On motion of plaintiff, an order was made requiring that defendants pay into court all sums then due under the terms of the contract, the sums to become due as they matured, and the future taxes and assessments. Defendants did not make the payments and after a hearing upon an order to show cause defendant Edward W. Glinsky was committed to the county jail for contempt until such payments were made but not to exceed 30 days. To review this order of commitment we issued this writ of certiorari. Much space is taken in plaintiff’s brief in calling our attention to the fact that defendants are seeking affirmative relief and to a consideration of whether their cross-bill would justify such affirmative relief. But we think both suggestions are beside the mark. In order to more clearly perceive what is before us, it may not be amiss to call attention to what is not before us. There being no motion to dismiss the cross-bill in the nature of a demurrer, we ought not to consider whether the cross-bill would be bad on general demurrer. The defendants do not seek an injunction to restrain plaintiff from enforcing the land contract; on the other hand, they offered in open court to surrender possession of the premises to the plaintiff. Nor was the money required to be deposited in place of a bond or otherwise as a condition of the maintenance of the action set forth in the cross-bill. Quite likely the trial judge may re quire reasonable conditions of a party seeking equitable relief sucb as a bond or deposit to secure payment of costs and doubtless numerous other conditions, and may refuse a party the right to proceed unless the conditions are complied with, but this right to impose conditions upon jib.e right to proceed does not confer power to imprison for failure to pay a debt due on a simple contract (see Constitution, art. 2, § 20'; Melconian v. Grand Rapids, 218 Mich. 397), and this is true even though the court has ordered the payment of such debt either to the creditor or to the clerk of the court. The putting of such a debt into a final decree or judgment, or into an interlocutory order does not change its character. The money required to be paid was at most due on a contract (and this assumes, for the purpose of the ,case, that defendants were entirely wrong on the facts set up in their cross-bill); it was not a specific fund nor was it a trust fund, nor was it due from or to an officer or arm of the court. It was at most a debt due on a contract between private parties and its collection could be enforced in a simple action at law by execution. Under such circumstances, a party may not be imprisoned for contempt for failure to pay it. 3 Comp. Laws 1915, § 12268, subcl. 5; North v. North, 39 Mich. 67; Carnahan v. Carnahan, 143 Mich. 390 (114 Am. St. Rep. 660, 8 Ann. Cas. 53); Swarthout v. Lucas, 102 Mich. 492; Jones v. Wayne Circuit Judge, 236 Mich. 313; Belting v. Wayne Circuit Judge, 245 Mich. 111. In the last cited case, it was held (quoting from the syllabus); “An order of court for payment of alimony, either permanent or temporary, is enforceable by proceedings for contempt, but other orders for payment of money are not so enforceable unless by law execution for collection cannot be awarded. ’ ’ The order here under review will be set aside, with costs to defendant Edward W. Ginsky. North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.

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Wiest, J. This is a suit to quiet title. Two questions are presented: (1) Did a warranty deed, confessedly security in the nature of a mortgage in the first instance, by subsequent deeds, acts, land contract, options, lease, and dealings with reference to the land, pass the title in fee? (2) If not, did plaintiffs in good faith, and for a valuable consideration, purchase the property from parties having of record title in fee? The decree in the circuit quieted plaintiffs’ title. Several defendants appealed, but it is only necessary to pass upon the rights of Alexander T. Fischer, who claims right of redemption, and insists that plaintiffs are only mortgagees, notwithstanding the matters we will now mention. • Mr. Fischer owned the land, was indebted to Anthony Lauhoff, and May 10, 19Ó9, he and his wife executed and delivered to Lauhoff and wife a warranty deed to the premises. This instrument was recorded as a deed, although conceded to have been given as security in the nature of a mortgage. Mr. Fischer did not pay his debt to Lauhoff, and, April 6, 1914, Lauhoff and wife conveyed the land to Fenton B. Nebel and wife by warranty deed. This conveyance was also recorded as a deed, although the Nebels knew that the Lauhoff deed from Fischer was in the nature of a mortgage. The same date Mr. and Mrs. Fischer gave Mr. and Mrs. Nebel a quitclaim deed. The deed from the Lauhoffs operated to convey the mortgage interest and the quitclaim deed from the Fischers to the Nebels was intended in aid of the security. We now come to matters requiring somewhat extended notice, as it is claimed they operated to vest the legal title in the Nebels. July 14,1914, Mr. Nebel and his wife entered into a land contract with Eleanor Fischer, daughter of Alexander, for the sale to Eleanor of the premises upon payment of $8,131, on or before two years from that date. In that transaction Mr. Fischer was the real party interested- September 30,1919, that land contract was assigned by Eleanor to the Nebels, and thereby canceled; nothing having been paid thereon. The same day Mr. Nebel, as lessor, and Eleanor Jeffries (nee Fischer), as lessee, executed a lease of the premises to run from October 1, 1919, to October 1, 1920. September 17, 1919, Nebel and wife signed an option giving Eleanor Jeffries the right, until October 1,1920, to purchase the premises upon payment of $11,400, and the taxes due after January, 1919. The right, under this option, was not exercised. Mr. Fischer maneuvered all these matters, and he, instead of his daughter, was the interested party. The Nebels wanted their money, and Mr. Fischer was active in inducing plaintiffs herein to purchase the land from the Nebels and give him an option to purchase. Mr. and Mrs. Sauer decided to purchase, and September 17, 1923, Mr. and Mrs. Nebel, by warranty deed, conveyed the land to Mr. and Mrs. Sauer, receiving therefor $20,000 in cash and a mortgage back for $10,000, which mortgage was later paid. The deed and mortgage were recorded. Mr. Fischer was anxious to have the deal consummated, and participated in bringing about the sale and knew the price paid. October 25, 1923, Mr. Fischer obtained from Mr. and Mrs. Sauer an option allowing him to purchase the land, and a contiguous six and one-half acre parcel, for the sum of $47,500, with right to renewal of the option for another year upon increasing the price $6,000, and like right to renew for one more year. This option was upon the consideration that Mr. Fischer pay seven per cent, interest on the option price and also pay the taxes. Mr. Fischer, while anxious to obtain the so-called option, was careful not to sign it and merge it into a contract to purchase. He did not pay the interest or taxes, nor take a renewal. December 15, 1925, Mr. and Mrs. Sauer, by registered mail, sent Mr. Fischer, notice of forfeiture and cancellation of the option. Mr. Fischer now invokes the maxim, “Once a mortgage, always a mortgage.” That maxim, however, does not mean that a right of redemption cannot be lost except under foreclosure. Plaintiffs assert that they purchased the title in good faith and for a valuable consideration, without knowledge of any claim of a mortgage; that Mr. Fischer made no such claim while inducing them to make the purchase from the Nebels, and, in any event, the deed from Mr. Fischer to Lauhoff, if in the nature of a mortgage, was later changed, by subsequent deeds and the dealings we have mentioned, into an absolute title. In reply to plaintiffs’ claim of good faith, Mr. Fischer points to the testimony of Herman A. Miller, who examined the title for plaintiffs. “Q. Did you know anything about Mr. Nebel’s title being that of mortgagee or vendor in a land contract? “A. Well, I knew how he got it in the first place, yes, sir.” We get little help from this double question and answer. What did the witness know about the title at the time plaintiffs purchased! We must be informed more definitely before' we can charge plaintiffs with his knowledge. When plaintiffs purchased from the Nebels, Mr. Fischer was present, had urged the purchase, knew that plaintiffs paid $30,000 for the land, made no claim that the Nebels held as mortgagees, and that he had right of redemption, but led plaintiffs to believe they were getting title in fee simple and could give him an option to purchase the land. While it is conceded that the Lauhoff and Nebel deeds were, in the first instance, held as security in the nature of a mortgage, we very much question the. correctness thereof. Mr. Fischer at no time obligated himself to pay anything. A deed, in terms conveying a title in fee simple, is not to be held a mortgage, unless given to secure payment of a debt or loan. If personal liability to pay the debt is extinguished and it is optional with the grantor to rescue the property by payment, or relinquish it by nonpayment, it is an absolute sale with privilege of repurchase, and not a mortgage. See Blumberg v. Beekman, 121 Mich. 647; Gogarn v. Connors, 188 Mich. 161. We will, however, consider the issues as presented by the briefs. It is well established that a deed, given as a mortgage, may be changed by subsequent ágreement of the parties into an absolute deed. Brennan v. Finn, 217 Mich. 584. Title may not be passed by estoppel, it is true, but when passed by warranty deed and the grantor claims parol right of defeasance he may, by agreement or acts evidencing such purpose or bringing such re-. suit, cancel the secret agreement and let the terms of the deed control. We quote the following from Falis v. Conway Mutual Fire Ins. Co., 7 Allen (Mass.), 46: “The first deed and bond unquestionably constituted a mortgage; and the plaintiff now contends that this character of the estate was not changed by the subsequent transactions, and that he held an equity of redemption when he answered that he owned the property. But we cannot so regard it. The bond of defeasance, the only contract made with him at the time when he conveyed the land, had been surrendered, and by the agreement of the parties had become inoperative and void. The new bonds given in succession were in every essential particular new and independent contracts; they were different in amount, upon a consideration partly new, and to be performed at a different time. They were therefore merely personal contracts; and not being made at the same time with the conveyance of the land, or provided for in any agreement made at that time, did not create any estate in the land. The plaintiff had surrendered and abandoned the title which he held as mortgagor, and made a contract to purchase the land upon new conditions, and for a new consideration. ” We quote, with approval and as applicable, the following from Maxfield v. Patchen, 29 Ill. 39: “If this was a mortgage, it was from circumstances outside of, and independent of, the written agreement. * * * Even if this was in its inception a mortgage, the evidence that appellant had notice of that fact when he purchased, is not sufficient. * * * “But conceding that appellant was fully aware of all the circumstances of the case, from the time the land was purchased of the government up to the time of liis own purchase, did he acquire the title, subject to be defeated by appellee’s claim? * * * We think the evidence is abundant to show, that appellee had abandoned the contract. It is true, he did not in terms say so, but all of his acts subsequent to the maturity of his notes seem to unmistakably indicate such a design. And had the land not been improved, or had it not appreciated in value, the presumption, from his previous conduct, is, that he would never have asserted this claim. To permit him to do so, would be to enable him to perpetrate a fraud upon appellant. If he purchased without notice, he must be protected. If, with full notice of all the circumstances, he was invited by the acts of appellee to believe that he had abandoned his claim, it would be inequitable and unjust to permit him to recover the premises, with the improvements and enhanced value of the land. Appellee has been guilty of laches, has stood by and failed to assert his right when it would have injured no pqrson. He did no act, or even claim the right to enforce the contract, when it would have produced no injury. The right to treat this contract as a security for a loan, being a verbal secret understanding between the parties, not appearing in the written agreement, may be shown to have been voluntarily abandoned, altered or rescinded by the agreement of the parties. If it appeared in the written agreement, then a regular foreclosure, a release or satisfaction would be necessary. As between the parties themselves, the proof of abandonment or a rescission might be required to be more rigid than where the rights of third parties had intervened.” But defendant Fischer appeals to the maxim, “Once a mortgage, always a mortgage.” The distinction between the maxim, “Once a mortgage, always a mortgage,” and surrender of a right of defeasance, was well pointed out by Chief Justice Shaw in Trull v. Skinner, 17 Pick. (Mass.) 213: “The first question is, whether this last agreement, surrendering and canceling the instrument of defeasance, was an extinguishment of the equity of redemption, as between the parties, and against the creditors of the mortgagor. The court are of opinion^ that where.an absolute deed is given, accompanied by a simultaneous instrument, operating by way of defeasance, and afterwards the parties, by fair mutual stipulations, agree that the defeasance shall be surrendered and canceled, with an intent to vest the estate unconditionally in the grantee, by force of the first deed, by such surrender and cancellation the estate becomes absolute in the mortgagee. The original conveyance stands unaffected in form and legal effect; it conveys an estate in fee; the only party who could even claim a right to deny it that operation, by engrafting a condition upon it, has voluntarily surrendered the only legal evidence, by which that claim could be supported, and is thereby estopped from setting it up. Such cancellation does not operate by way of transfer, nor strictly speaking by way. of release working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evidence, by which alone the claim could be supported. ’ ’ "We have quoted the holdings where written defeasances were involved, and it is clear that the rule applied in such cases is equally applicable to a case involving a claimed parol right of defeasance. If Mr. Fischer ever had right of defeasance, he lost the same by his own acts, and the contract, lease, options, and course of dealings wholly negativing rights of a mortgagor. For such reason, and because plaintiffs were good-faith purchasérs, the decree in the circuit is affirmed, with costs against defendant Alexander T. Fischer. North, . C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred.

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Potter, J. November 22, 1924, plaintiff commenced suit against defendants under Act No. 187, Pub. Acts 1905, 3 Comp. Laws 1915, §§ 14827-14830. It is alleged and not disputed that the board of education of the city of Detroit made a contract with Rosewarne, McNab & Worswick for the construction of the Noble high school for $349,870; that the board of education required such contractors give a bond for the faithful performance of their contract, and Rosewarne, McNab & Worswick entered into a bond as principals with the Southern Surety Company, defendants, as surety, as required, in the sum of $349,870, conditioned upon it building and completing the Noble high school and paying to any subcontractor, or by any such contractor or subcontractor as the same may become due and payable, all indebtedness which may arise from said contractor to a subcontractor or party performing labor or furnishing materials, or any subcontractor to any person, firm, or corporation on account of any labor performed or material furnished in the erection, repairing, or ornamentation of such building. Rosewarne, McNab & Worswick made a contract with Irvine & Meier, Incorporated, for the installation of the heating, plumbing, and generating systems in said building. Irvine & Meier, Incorporated, contracted with the National Regulator Company to install the National System of Automatic Temperature Regulation in said building for $5,450. The proof shows the National Regulator Company sold and delivered the material and performed the work and installed the National System of Automatic Temperature Regulation in accordance with the plans and specifications for the building. It received in payment upon contract, $1,550, leaving $3,900 due. Upon the filing of the declaration, Rosewarne, McNab & Worswick pleaded the general issue and gave notice that plaintiff’s declaration did not state a cause of action; did not comply with the provisions of Act No. 187, Pub. Acts 1905; that defendants were discharged from liability because no proper notice was served as provided by Act No. 187, Pub. Acts 1905; that the Noble school was not yet accepted by the board of education; that the work performed was not in accordance with the plans and specifications. The defendant Southern Surety Company likewise filed a plea of the general issue by the same attorneys, giving the same notice of special defenses. The pleas were filed on January 5, 1925. The case was brought on for trial November 25, 1927, two years and ten months after it was at issue. The proof in the case was undisputed that the board of education entered into the contract as alleged with defendants Rosewarne, McNab & Worswick; that the bond mentioned and set forth in the declaration was executed by the Southern Surety Company and the principal contractor; the contract .was made with Irvine & Meier; they entered into a contract with the National Regulator Company for the installation of the National System of Automatic Temperature Regulation; the same was installed by the National Regulator Company in accordance with the plans and specifications, in good working order, and the National Regulator Company had paid any and all sums due for labor or material in connection with such installation. It furnished monthly statements of the amount due, and had received $1,500 upon its contract; and the amount due upon the contract at the time of the completion of the installation was $3,900. Defendant’s attorney then recalled to the stand Mr. Purcell, plaintiff’s witness and the local representative in Detroit of the National Regulator Company, and made proof that the contract made by the National Regulator Company was entered into in the city of Detroit, whereupon he made a motion to amend the plea filed by defendants to set up that the National Regulator Company is a foreign corporation and was not, at the time the contract was entered into or at the time of the suit, authorized to do business in the State of Michigan. This motion was denied, and thereupon defendant’s counsel moved for a directed verdict for both defendants for the reason plaintiff was a foreign corporation, not authorized to do business in the State; that plaintiff National Regulator Company was a subcontractor under Irvine & Meier in the installation of the heating and equipment in the Noble school, and that no notice was given under the provisions of 3 Comp. Laws 1915, § 14828, and the amendments thereto, either to the board of education or to the general contractors, Rosewarne, McNab & Worswick; that it also claimed the benefit of the bond of the Southern Surety Company, and that the Southern Surety Company was not liable on the bond for the reason of insufficient statutory notice, which motion for a directed verdict was denied, and defendants then gave testimony tending to establish that Rosewarne, McNab & Worswick had in their hands money which might otherwise be due to Irvine & Meier, amounting to approximately $11,000, and that there were outstanding claims against it for $24,000. Defendant offered a certificate from the secretary of State that he could find no record after diligent examination in his office, of the National Regulator Company, a foreign corporation, having been admitted to do business in the State. This offer was objected to by plaintiff and the proof rejected, whereupon the court directed a verdict for the amount $3,900 with interest, amounting in all to $4,533, and judgment was entered thereon. Defendant’s counsel moved for a new trial upon the ground that the verdict was against the law and the evidence ; that the court erred in overruling the motion of defendant’s counsel for a directed verdict, for the reason that it affirmatively appeared that plain tiff was a foreign corporation; that proper notice had not been given in accordance with Act No. 187, Pub. Acts 1905 as amended, and for other reasons. This motion for a new trial was denied, and plaintiff brings error, contending that the verdict was against the law and the evidence; that the court erred in overruling the motion of defendants to direct a verdict for defendants at the close of plaintiff’s testimony; that the court erred in refusing to direct a verdict for the reason that it appeared that plaintiff was a foreign corporation, doing business in this State in violation of 3 Comp. Laws 1915, §§ 9063, 9072; that the court erred in not directing a verdict for defendants because timely notice was not served as provided by section 2 of Act No. 187, Pub. Acts 1905; because the court erred in sustaining the objection of plaintiff to the admission of the certificate of the secretary of State showing plaintiff' had not been authorized to do business in the State; because the court erred in refusing to permit defendants to amend their plea as heretofore stated; because the court erred in directing a verdict for plaintiff, and in not directing a verdict for defendant, and in deny-' ing its motion for a new trial. This case had been at issue two years and ten months prior to the time the motion was made to amend defendants’ plea. The motion was not made until the case was on trial in the Wayne circuit, and then only at the conclusion of plaintiff’s testimony. We do not think the court erred in refusing to permit defendant at that stage of the proceeding to amend his plea. Defendant had just as good an opportunity to know the basis for this plea, which is a matter of public record, at the time it filed its original plea, as at the time of the trial. It had no right to hold back giving 'notice of this defense and then spring it upon the plaintiff at the trial when he must either accept a continuance or be defeated in case such plea was granted. There is nothing on the record to indicate whether this action was taken by defendants deliberately or whether their failure to know the situation as to plaintiff was due to negligence. The result to plaintiff would be the same in either instance. At common law the surety was particularly subject to the protection of the court. In order to hold the surety all of the terms of the contract had to be strictly complied with. Sureties were usually persons who executed bonds gratuitously, but in this case there is no evidence that this bond was gratuitously signed by the surety. On the other hand, it is signed by a surety company and is a contract entered into for pay. The strict rule of the common law applicable to individual gratuitous sureties does not apply. People v. Bowen, 187 Mich. 257; People v. Traves, 188 Mich. 415. It is claimed the owner, principal contractor, and surety, were entitled to notice before any money was paid. Notice was given to the board of education June 7, 1924, at which time it had in its hands $45,835.13 belonging to the principal contractor, who has since been paid in full. This was sufficient under 3 Comp. Laws 1915, § 14828. Under the circumstances the delay, if any, will not operate to discharge the surety from liability. People v. Bowen, supra, and cases cited. People v. Traves, supra. The other assignments of error have been examined, and we do not think they merit discussion. Judgment is affirmed, with costs to plaintiff. North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.

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